DOL Issues Guidance on the Child Labor “Hot Goods” Prohibition | JD Supra

Field Assistance Bulletin No. 2023-3: Guidance on the Prohibition of “Hot Goods” and Child Labor Violations

On August 31, 2023, the U.S. Department of Labor’s Wage and Hour Division issued Field Assistance Bulletin No. 2023-3 (FAB) to provide guidance to field staff on the prohibition against the shipment of “hot goods,” found in Section 212(a) of the Fair Labor Standards Act (FLSA), and how the provision can be used as an enforcement tool for child labor violations.

What is a “Hot Good”?

A “hot good” is defined as a good that was produced in an establishment in or about which oppressive child labor occurred. The FAB provides broad definitions for each of these terms:

• “Goods”: Includes wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof.

The FAB clarifies that when a hot good is incorporated as a component of a new product or when hot goods are comingled with other goods, all the goods are considered hot.

• “Oppressive Child Labor”: Includes any violation of the DOL’s Child Labor Regulations and Orders.
• “Produced”: Refers to the production, manufacturing, mining, or handling of goods, including handling, sorting, storing, packing, and labeling of goods that have already been manufactured.
• “In or About an Establishment”: A minor is employed “in” an establishment in the United States when they perform at least some occupational duties on the premises. A minor is employed “about” an establishment if they perform work duties close in proximity to the establishment and their work duties are directly related to the activities of the producing establishment.

Prohibition Against Shipment or Delivery of Hot Goods and the 30-Day Rule

Section 212(a) of the FLSA prohibits the shipment or delivery for shipment of hot goods in commerce within the United States. Goods removed from an establishment within 30 days of a child labor violation are considered hot and are barred from further downstream shipment.

Good-Faith Defense

Section 212(a) provides a good-faith defense for purchasers of hot goods who acquire the goods in good faith and in reliance on written assurances that the specific goods were produced in compliance with the FLSA child labor provisions. However, a general stipulation in a purchase order is not enough, and the assurance must be a separate written assurance from the producer as to the specific goods at issue.

Enforcement and Remedies

The Wage and Hour Division (WHD) has the authority to investigate oppressive child labor violations and hot goods shipments. If a violation is found, the WHD may request voluntary refraining from shipment or file a civil action in federal court to enjoin the shipment of goods. The WHD can also assess money penalties and enhanced compliance terms.

Recommendation for Employers

The FAB provides examples to illustrate the application of the “hot goods” provision. Employers should be aware of the reach of this provision and its impact on operations. Additionally, employers must also consider international standards on child labor and engage in human rights due diligence.

Footnotes:

1. Section 212(a) of the FLSA prohibits the shipment or delivery for shipment of hot goods in commerce within the United States.
2. Goods include wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof.
3. Production, manufacturing, mining, or handling of goods.
4. A minor is employed “in” an establishment if they perform occupational duties on the premises. A minor is employed “about” an establishment if they perform work duties close in proximity to the establishment and their work duties are directly related to the activities of the producing establishment.
5. An establishment is a physical place where goods are produced.
6. Child labor is prohibited by international standards such as ILO Convention No.138 on Minimum Age and Convention No. 182 on the Worst Forms of Child Labour.

Source: https://www.littler.com/publication-press/publication/dol-issues-guidance-child-labor-hot-goods-prohibition

SDGs, Targets, and Indicators

1. Which SDGs are addressed or connected to the issues highlighted in the article?

• SDG 8: Decent Work and Economic Growth
• SDG 12: Responsible Consumption and Production
• SDG 16: Peace, Justice, and Strong Institutions

2. What specific targets under those SDGs can be identified based on the article’s content?

• SDG 8.7: Take immediate and effective measures to eradicate forced labor, end modern slavery and human trafficking, and secure the prohibition and elimination of the worst forms of child labor.
• SDG 12.4: By 2020, achieve the environmentally sound management of chemicals and all wastes throughout their life cycle, in accordance with agreed international frameworks, and significantly reduce their release to air, water, and soil in order to minimize their adverse impacts on human health and the environment.
• SDG 16.2: End abuse, exploitation, trafficking, and all forms of violence against and torture of children.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

Yes, there are indicators mentioned in the article that can be used to measure progress towards the identified targets:

• Indicator for SDG 8.7: Number of children engaged in child labor.
• Indicator for SDG 12.4: Reduction in the use of child labor in the production of goods.
• Indicator for SDG 16.2: Number of cases of child labor violations investigated and remedied.

SDGs, Targets, and Indicators

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Source: jdsupra.com

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