Sen. Kelly Ayotte, a first-term U.S. senator and former state attorney general from New Hampshire, has been mentioned as a potential pick to become the vice presidential running mate of presumptive GOP presidential nominee Mitt Romney. During her interview on NBC’s “Meet the Press,” she lauded Romney’s business credentials as proof that the Republican candidate can rescue the economy from its relative malaise.
Ayotte suggested that President Obama has proven himself incapable of smart governance, mentioning two incidents that administration critics like to cite as examples of regulatory overreach. Let’s review those matters to determine whether they back up the senator’s claims.
In August, the Department of Labor proposed revisions to child labor rules that apply to the agricultural sector. Among the most significant changes: banning children under age 16 from operating power-driven equipment such as tractors and prohibiting people under the age of 18 from working in grain silos, feed lots and stockyards.
A Washington Post article noted that that Labor Department tried to avoid controversy by emphasizing that children working on their parents’ farms would be excluded from the proposals. That exemption is actually a matter of federal statute under the Fair Labor Standards Act of 1938. The Labor Department lacked the authority to change it.
It’s worth noting that a Labor Department summary of the proposed changes stated clearly that the parental exemption “allows the child of a farmer to perform any task, even hazardous tasks, at any age on a farm owned or operated by the parent.”
Still, after much hue and cry from farmers and lawmakers, the Labor Department announced in April that it was abandoning its proposals altogether. A press release from the department said, “to be clear, this regulation will not be pursued for the duration of the Obama administration.”
Sounds like the administration fled from its recommendations. So what happened?
For one thing, some opponents blew the recommendations out of proportion, saying the changes would do things they wouldn’t actually do. Many critics falsely suggested, and perhaps even believed, that the changes would prevent kids from working on their parents’ farms.
The liberal blog Daily Kos had this to say about the matter:
“After the Department of Labor clarified that the rule would not apply to kids working on their parents’ farms, the opposition went in two directions. Some switched their focus to the alleged concern that kids wouldn’t be able to work on uncles’ and grandparents’ farms and so rural life would still take a hit; others kept the focus on parents. That misinformation campaign included a Facebook post from Sarah Palin claiming, falsely, that ‘The Obama Administration is working on regulations that would prevent children from working on our own family farms.’”
The rhetoric became so one-sided that even some pro-Obama Democrats applauded the Department of Labor’s April decision to abandon the proposals.
“I’m relieved that the Department of Labor decided to shelve these regulations,” said Sen. Al Franken (D-MN) in a statement. “While they may have been well-intentioned, these rules would have had a negative impact on our state’s ag community, and I want to thank the Department of Labor for hearing our concerns.”
A separate statement from the office of Sen. Debbie Stabenow (D-MI), chairwoman of the Senate Committee on Agriculture, Nutrition and Forestry, said that the senator “applauded the U.S. Department of Labor’s move to withdraw a controversial farm labor rule that would have prevented many young people from working on family farms.”
At this point, it’s worth circling back to the “alleged concern that kids wouldn’t be able to work on uncles’ and grandparents’ farms,” which the Daily Kos mentioned. That concern was misplaced.
The Labor Department had actually interpreted the parental exemption to apply in cases where relatives assume the role of parent. The initial recommendation from September 2011 said: “It does not matter if the assumption of the parental duties is permanent or temporary, such as a period of three months during the summer school vacation during which the youth resides with the relative.” In other words, a 10-year old can work on his uncle’s farm for the summer with no limitations on hazardous tasks.
Ayotte’s office never challenged this point with us. Instead, spokesman Jeff Grappone noted that the Labor Department’s newly recommended interpretation of the exemption would have prohibited kids from working on farms only partially owned by their parents.
Grappone appears to be right. Here’s what the initial proposal called for: “Application of the parental exemption in agriculture is limited to the employment of children exclusively by their parents or person(s) standing in place thereof on a farm owned or operated by the parent(s). Only the sole owner or operator of a farm is in a position to regulate the duties of his or her child and provide guidance.”
Grappone called this a “departure from agency interpretation of existing law,” adding that “many family farms are not wholly-owned. In fact, farm families routinely form partnerships, LLCs, or corporations for a variety of reasons.”
Fair enough. But the average listener could easily assume from Ayotte’s comments that children would be prohibited outright from working on family farms. That’s simply not the case.
Kids of all ages working on family owned or operated farms would have been able to perform any kind of task, regardless of the risks involved. Furthermore, the proposed regulations would not have barred teens from working on farms partially owned by family. Instead, they would have required such employees to follow stricter guidelines for operating dangerous equipment or working in hazardous areas.
This is all quite different from saying teenagers “can’t work” on family farms, which implies absolute prohibition. And we should note that nothing in the recommended rules would have prohibited working-age kids from doing relatively safe chores — shoveling hay, for instance — on non-family farms.
(UPDATE: An earlier version of this column referred to “milking cows or shoveling hay.” Grappone correctly pointed out that the proposed regulations would have prohibited children from milking cows with power-driven milking equipment while working on non-family farms. We have removed the reference to milking cows.)
Obama’s critics cite the proposed farm regulations as an example of bureaucratic greed, but it’s important to look at why the Labor Department considered revisions in the first place: fatalaties related to farm work are fairly common.
In 2010, two teenagers, one of whom was a minor, suffocated in a grain bin in Mount Carroll, Ill. The employees sank while “walking down” corn to make it flow, and the grain engulfed them like quicksand, according to news reports.
The Mount Carroll incident prompted federal authorities to reexamine grain bin accidents in 2011. Twenty-five U.S. workers had been killed in such entrapments the previous year, according to the Department of Labor’s Occupational Safety and Health Administration.
Granted, the Mt. Carroll employees weren’t working on a farm owned by family, but it’s not like children are always safe when they work for parents and relatives. Just weeks before the Labor Department abandoned its recommendations, a 9-year-old boy died while doing chores on his family’s farm in Darlington, Ill.
Here’s how a local news organization reported the child’s death:
“His grandfather said the 9-year-old was working on his family farm, doing his chores as usual on Monday evening when he drove up a hillside on his small, full-sized four-wheeler, it rolled on top of him, pinning him to the ground.”
It’s important to note that the Obama administration showed a willingness to compromise when constituents expressed anger over the Labor Department’s recommendations. The same can be said of National Labor Relations Board incident that Ayotte brought up.
Boeing announced in 2007 that it would create a second production facility in Washington state to address a growing backlog of orders. But the airplane manufacturer changed its mind in 2009, deciding to meet demand by opening a new non-union plant in South Carolina instead.
The International Association of Machinists and Aerospace Workers accused Boeing of expanding to South Carolina to punish the union for a 58-day strike in 2008, prompting the labor-relations board to file a complaint that could have forced the company to bring its production line back to the unionized plant in Washington.
A New York Times article described the complaint as “what may be the strongest signal yet of the new pro-labor orientation of the National Labor Relations Board under President Obama.” Critics, including the Washington Post editorial board, argued that a victory for the NLRB would undermine a company’s ability to consider all legitimate factors, including work disruptions, when planning for its future.
The NLRB dropped the polarizing case after Boeing agreed to a generous contract extension for its unionized workers in Washington.
Grappone had this to say about the matter: “Senator Ayotte believes that the NLRB’s complaint against Boeing went beyond its legal authority and purpose. It showed the agency being less of a fair arbiter and more of a labor-union booster.
The Pinocchio Test
Ayotte was technically wrong about the Labor Department proposals. She said the rules would mean that “teenagers can’t work on their family farms.”
No child of any age is barred from doing any type of work -- no matter how hazardous -- on farms fully owned or operated by family, nor are they prohibited outright from doing agricultural work for farms owned or operated only partially by family. The senator’s comment about the proposals was misleading, if not factually incorrect.
As for the Boeing case, the National Labor Relations Board dropped its complaint after the airplane maker struck a deal to extend its contract with union workers, and perhaps because the complaint drew so much criticism.
In both examples of supposed regulatory overreach, the issues went away, in part because the Obama administration bowed to pressure. On balance, Ayotte earns Two Pinocchios for her claims about child farm labor and the case against Boeing.
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