Below the Floor: How States are Challenging Federal Child Labor Law

by Maggie Traubert, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

In May 2023, Iowa enacted legislation expanding the hours that minors can work, joining a growing number of states that are relaxing youth labor restrictions amid nationwide labor shortages.¹ Businesses quickly confronted a legal dilemma: following state law put them in violation of federal child labor rules under the Fair Labor Standards Act (“FLSA”),² exposing them to fines and enforcement actions.³ This clash illustrates a deeper tension in U.S. child labor regulation. When states authorize conduct that falls below federally mandated minimums, employers face legal uncertainty, regulatory conflict, and the risk of civil penalties—even when acting in good faith.⁴

This Article examines these conflicts and the resulting structural breakdown in state-federal coordination, which has transformed child labor law into a system where legal boundaries are often defined by executive enforcement rather than legislative clarity. Part II provides background on child labor in the United States, including the FLSA’s child-labor provisions and recent state efforts to expand youth labor. Part III analyzes the consequences of regulatory dissonance, including “zombie laws,” the enforcement gap gamble, and asymmetric burdens placed on businesses. Finally, Part IV considers policy implications and potential approaches to reconcile state innovation with federal minimum standards.

II. Background

A. Historical Foundations of Child Labor Protections

As the Supreme Court recognized in In re Gault, “Under our Constitution, the condition of being a boy does not justify a kangaroo court.”⁵ The memorable phrasing underscores a central truth: children are recognized as full legal persons under the law, deserving protection and consideration. While Gault formally affirmed children’s procedural rights, it reflects a broader legal recognition that minors are entitled to special protections—a principle that underpins both historical and modern efforts to regulate child labor.

Throughout American history, children have contributed to the workforce. In agrarian and household economies, their labor was a routine and often necessary part of family life.⁶ From early childhood, they assisted with planting and harvesting crops, tending animals, and performing domestic tasks, with their work viewed as both economically productive and morally formative.⁷ In these settings, child labor was typically integrated into family life, supervised by parents, and understood as part of preparation for adulthood rather than as a separate wage-earning enterprise.⁸

The nature and scale of child labor changed dramatically with industrialization.⁹ As the United States shifted from an agrarian economy to one centered on manufacturing and urban production, children increasingly worked outside the home in factories, mills, mines, and workshops.¹⁰ Unlike farm labor, this work was often repetitive, hazardous, and performed for long hours under the authority of independent, unrelated employers rather than family members.¹¹ By the late nineteenth century, children constituted a substantial portion of the industrial workforce, particularly in textiles, mining, and light manufacturing.¹² In these settings, children were routinely exposed to serious physical danger, exhaustion, and injury, with little regard to their health, safety, or education.¹³ The visibility and severity of these conditions fueled growing concern among reformers, labor advocates, and state lawmakers.¹⁴

In response to these concerns, states began enacting laws to protect children from the worst abuses of industrial labor. Early legislation focused on minimum age requirements, limits on working hours, and compulsory schooling, reflecting the belief that childhood should prioritize education and development rather than relentless labor.¹⁵ Despite these laws, many children continued to work long hours under harsh conditions, and compliance depended largely on employers’ willingness to follow the rules.¹⁶

While these laws marked an important shift, enforcement remained inconsistent, and many children continued to work in dangerous or exhausting conditions.¹⁷ Nevertheless, these state-level reforms reflected a growing consensus that government had a legitimate role in safeguarding children’s health, education, and future productivity.¹⁸ These incremental changes laid the groundwork for the early twentieth-century movement to regulate child labor at the federal level. This movement culminated in the efforts of the National Child Labor Committee, a private reform organization that investigated child labor conditions and lobbied for federal protections, and ultimately in legislation such as the Keating-Owen Act and later the FLSA.¹⁹

B. Federal Action and The Fair Labor Standards Act

Early state-level efforts to regulate child labor revealed the limits of a fragmented approach and underscored the need for a national response. The 1900 census reported that nearly two million children were employed across industries nationwide, highlighting the scale of the problem.²⁰ In 1916, Congress made its first significant attempt at federal regulation with the Keating-Owen Act,²¹ which prohibited the interstate sale of goods produced by factories or mines employing children below specified ages and imposed restrictions on their working hours.²²

That effort proved short-lived. Two years later in, Hammer v. Dagenhart,²³ the Supreme Court struck down the Keating-Owen Act, holding that it exceeded Congress’s authority under the Commerce Clause and emphasized the states’ traditional power to regulate local labor conditions.²⁴ he decision effectively stalled federal child-labor regulation for two decades, reinforcing a fragmented, state-by-state approach that left significant gaps in protection.²⁵

Congress renewed its efforts during the New Deal, as the economic and social upheaval of the Great Depression reshaped political attitudes toward protecting minors.²⁶ Programs adopted under the National Industrial Recovery Act significantly curtailed child labor, as many industry codes established hiring ages—typically sixteen—and barred minors from hazardous or night work.²⁷ The Public Contracts Act of 1936, for example, prohibited boys under sixteen and girls under eighteen from working in firms supplying goods to the federal government, while the Beet Sugar Act set the minimum age at fourteen for cultivating and harvesting sugar beets and cane.²⁸ These efforts culminated in the FLSA of 1938, which established a comprehensive nationwide framework governing youth employment.²⁹

The FLSA has endured for more than eighty years with relatively few changes to its youth employment provisions.³⁰ The statute establishes federal minimum age requirements and hour limitations for non-agricultural work.³¹ Children under fourteen may only work in limited exempt roles, such as newspaper delivery or acting.³² Those aged fourteen and fifteen may work outside of school hours for up to three hours on school days and eight hours on non-school days.³³ Sixteen- and seventeen-year-olds may work unlimited hours in most occupations except those designated hazardous.³⁴ In total, federal regulations prohibit minors from working in seventeen hazardous occupations, including coal mining, the operation of power-driven machinery, roofing, and most construction and manufacturing.³⁵

Enforcement of the FLSA rests with the Department of Labor, which has authority to investigate violations and impose civil penalties, with higher fines for serious or willful infractions, including those resulting in injury or death.³⁶ While the FLSA establishes a federal baseline, many states have supplemented these protections with stricter age limits, hour restrictions, and occupational safeguards.³⁷ Together, this framework continues to shape contemporary efforts to regulate youth employment.³⁸ However, recent state-level developments suggest that this protective trend may be shifting.

C. Contemporary State Efforts to Expand Youth Employment

Although many states continue to enforce stricter child labor standards than the federal baseline, recent trends show that several are moving in the opposite direction, loosening restrictions and expanding youth employment opportunities.³⁹ These changes have included longer allowable work hours, lowering minimum ages for certain occupations, and reduced oversight requirements, such as work permits.⁴⁰

Iowa and Arkansas demonstrate prominent examples of this trend. In 2023, Iowa enacted legislation allowing fourteen-year-olds to work six-hour night shifts during the school year.⁴¹ The law also authorizes state agencies to waive hazardous-work restrictions for sixteen- and seventeen-year-olds in occupations such as demolition, roofing, excavation, and the operation of power-driven machinery.⁴² Similarly, Arkansas eliminated the requirement that fourteen- and fifteen-year-olds obtain work permits, removing a critical layer of parental oversight and state monitoring intended to prevent exploitative labor practices.⁴³

Ohio also demonstrates the trend followed by Iowa and Arkansas. In 2025, the state legislature considered a bill that would have allowed fourteen- and fifteen-year-olds to work until 9 p.m. on school days year-round.⁴⁴ Supporters argued that the measure would help businesses address persistent labor shortages, particularly in the service sector.⁴⁵ Although the bill ultimately failed, it underscores the broader movement among states to expand youth employment opportunities.⁴⁶

These legislative efforts are driven in part by economic considerations. A nationwide labor shortage, driven in part by the unemployment rate falling to its lowest level in fifty years in 2023, led policymakers and business groups to advocate for expanded youth employment as a way to fill job vacancies.⁴⁷ At the same time, employers can often hire younger workers at lower wages and with fewer obligations than older employees, creating a financial incentive to relax restrictions.⁴⁸ Iowa Governor Kim Reynolds, for example, framed expanded youth employment as a way for teens to gain work experience and responsibility, while signaling to the federal government that current labor rules may be overly restrictive.⁴⁹ Critics, however, caution that extending work hours and exposing minors to hazardous conditions can compromise education, safety, and long-term well-being.⁵⁰

From the early reforms of the twentieth century to today’s patchwork of state experiments, the story of child labor in the United States reflects a persistent tension between protection and opportunity. Federal law establishes a baseline, but states can—and increasingly do—bend the rules, creating gaps, conflicts, and uncertainty. Part III examines these gaps, considering how inconsistent state and federal rules leave teens vulnerable and pose a challenge for regulators.

III. Discussion

Recent state efforts to expand youth labor have created a regulatory environment that departs from traditional predictability. While the FLSA sets minimum standards, some state laws permit practices that fall below those federal requirements. Compliance can no longer be determined solely by reading statutes; businesses now face overlapping authorities and the risk of post hoc penalties, making it difficult to determine what conduct is lawful in advance.

This discussion examines four key dimensions of the problem. First, it considers the breakdown in coordination between state and federal regulatory systems. Second, it analyzes the “zombie law” effect, in which state statutes appear to authorize certain conduct but cannot legally be followed in practice. Third, it explores the enforcement-gap gamble, highlighting assumptions states make about federal enforcement capacity. Finally, it addresses the burden on businesses, illustrating how these conflicts shift legal and financial risk onto private independent actors.

A. Federalism and the Breakdown of Prospective Governance

Federal child labor regulation has historically operated through a system of cooperative federalism.⁵¹ The FLSA establishes a nationwide minimum baseline, and states may enact stricter protections above this baseline.⁵² This framework ensures both national uniformity and local flexibility, allowing employers to determine their legal obligations in advance and comply confidently with both federal and state standards.

Recent state efforts to expand youth employment depart from this model. Some laws authorize longer hours, reduced oversight, or participation in hazardous work for minors—conduct that federal law prohibits.⁵³ In effect, these states treat the federal floor as an optional ceiling. In other words, rather than viewing the federal standard as a minimum requirement, they interpret it as the maximum level of protection they are willing to allow. These statutes do not supplement federal standards; they directly conflict with them. Consequently, employers can no longer rely on state law as a guide to lawful behavior. Compliance becomes contingent on when—or if—federal enforcement occurs, creating uncertainty, increasing costs, and exposing well-intentioned businesses to potential penalties.

Beyond the practical challenges for regulated actors, this approach represents an unhealthy and inefficient version of federalism. Rather than a cooperative system where federal and state rules complement one another, the current dynamic allows states to pursue policy objectives while undermining federal legal clarity and predictability. Over time, this creates a landscape in which statutory compliance offers no guarantee of legal safety, effectively weakening the law’s prospective function.

B. The “Zombie Law” Effect

Recent state efforts to expand youth employment provide a striking example of what legal scholars call “zombie laws”—statutes that remain on the books despite being unconstitutional, preempted, or otherwise incapable of legal effect.⁵⁴ Because the FLSA establishes binding minimum standards for youth employment, state laws are preempted to the extent they conflict with federal law.⁵⁵ As a result, these state enactments are formally valid but functionally inert—they exist on the books while lacking the legal authority to be followed.

Unlike many traditional preemption disputes, the conflict here is neither accidental nor ambiguous. The federal baseline governing child labor has been settled for decades, and its supremacy is well understood. States legislating below that floor do so with full awareness that compliance with state law cannot displace federal obligations. In this sense, the statutes are zombies from the moment of enactment: they appear to authorize conduct but cannot lawfully do so.

The proliferation of such laws raises a fundamental question of legislative purpose. If state authorizations cannot be enforced or safely relied upon, what function do they serve? Rather than guiding lawful behavior, zombie statutes invite confusion, symbolic defiance, or strategic reliance on the hope that federal oversight will be absent. Law—which is often meant to operate prospectively as a set of actionable rules—is reduced to political signaling divorced from regulatory effect.⁵⁶

By enacting authorizations that cannot legally function, states undermine the clarity and predictability that labor law requires. These zombie laws do not replace federal standards; they obscure them. And in doing so, they set the stage for the next dynamic: a calculated gamble that limited federal enforcement capacity will allow these legally void authorizations to operate in practice.

C. The Enforcement Gap Gamble

In many regulatory contexts, states—acting through their attorneys general or by enacting parallel statutory regimes—step in to supplement federal enforcement and preserve continuity in the law.⁵⁷ By contrast, in the child labor context, states are doing the opposite: rather than filling enforcement gaps, they are enacting laws that rely on those gaps to operate.

The underlying assumption is that the federal government cannot be everywhere at once, and that child labor enforcement—constrained by limited investigators and largely reactive rather than proactive—will reach only a small fraction of violations.⁵⁸ For many employers, the practical decision is to follow what state officials permit, despite what distant federal statutes prohibit.

This enforcement reality creates a form of statistical immunity. Because inspections are selective and often triggered by complaints, injuries, or targeted initiatives, some violations may never face federal scrutiny.⁵⁹ States rely on this probability when enacting conflicting laws, treating enforcement scarcity as usable policy space rather than as a constraint. In doing so, they allow state authorization to function as a proxy for legality, even where federal prohibitions remain fully intact.

That gamble, however, is increasingly unstable. In response to growing friction between state and federal child labor standards, the Department of Labor (“DOL”) is concentrating enforcement efforts in jurisdictions where conflict is most pronounced.⁶⁰ The Department reported in February 2023 that child labor violations increased by nearly seventy percent since 2018, prompting expanded enforcement initiatives and calls for congressional authorization of higher civil penalties.⁶¹ In 2024, the DOL increased civil penalties for child labor violations by eighty-nine percent from the previous year, reaching $15.1 million.⁶² These targeted interventions demonstrate the limits of relying on enforcement gaps. Federal oversight may be uneven, but it is not absent, and when it reasserts itself, it does so retrospectively—after reliance has formed and harm may already have occurred. These patterns of selective enforcement underscore the precarious position of those expected to comply.

D. Asymmetric Risk and the Burden on Private Businesses

Conflicting state and federal youth labor regimes undermine the guarantee of fair notice, creating legal ambiguity and potential liability for well-intentioned businesses and individuals. A foundational premise of the legal system is that individuals are presumed to know the law—ignorantia legis neminem excusat, or “ignorance of the law excuses no one.”⁶³ This presumption means that lack of awareness does not shield someone from liability.⁶⁴ But the principle depends on a corresponding assumption: the law must provide fair notice of what conduct is required or prohibited.⁶⁵ Due process, guaranteed by the Fifth Amendment,⁶⁶ embodies this requirement, ensuring that laws are sufficiently clear to give a person of ordinary intelligence notice of what is prohibited before penalties can be imposed.⁶⁷

When a state statute affirmatively authorizes conduct prohibited under federal law, the notice inquiry is distorted. Local actors are not merely uninformed—they are misled by their own governments about what is lawful. For example, recall that Iowa’s recent laws have loosened work hour restrictions on youth labor, allowing fourteen- and fifteen-year-olds to work up to three hours more than the FLSA permits.⁶⁸

The burden of navigating these conflicts falls almost entirely on private businesses. States face no penalty for enacting statutes that conflict with federal law, and the federal government bears no direct loss when enforcement occurs. Employers absorb penalties, investigations, and reputational harm, while young workers may be exposed to hazardous work that is expressly prohibited under federal law. In effect, states pursue policy or expressive goals, but private actors—and the youth themselves—bear the costs when state authorization proves illusory. In this context, the asymmetry is striking: those most affected by the law have the least control over it. Is it defensible, or even ethical, for states to pass laws they know can only harm their own constituents?

IV. Conclusion

Recent state efforts to loosen restrictions on youth employment underscore the perils of legislating below the federal minimum. Conflicting state and federal rules generate legal uncertainty, impose asymmetric risks on businesses, and undermine the prospective function of labor law. Beyond regulatory confusion, these policies raise fairness and due process concerns, as employers face penalties for complying with state statutes that conflict with federal requirements. While addressing labor shortages is a legitimate policy goal, expanding youth work hours or lowering federal floors is neither the only nor the safest solution. Policy alternatives—such as incentivizing adult employment, improving wages, or investing in workforce training—can address labor gaps while preserving legal clarity and safeguarding the welfare and education of young workers.

Cover Photo by Art Institute of Chicago on Unsplash

Maggie Traubert

References

1
Jennifer Sherer & Nina Mast, Iowa Governor Signs One of the Most Dangerous Rollbacks of Child Labor Laws in the Country: 14 States Have Now Introduced Bills Putting Children at Risk, Econ. Pol’y Inst.: Working Economics Blog (May 31, 2023), https://www.epi.org/blog/iowa-governor-signs-one-of-the-most-dangerous-rollbacks-of-child-labor-laws-in-the-country-14-states-have-now-introduced-bills-putting-children-at-risk/ [https://perma.cc/55ED-ME32].
2
29 U.S.C. §§ 201–219.
3
Matt Christensen, Iowa Businesses Fined Over Child Labor Laws, KWQC (July 4, 2024), https://www.kwqc.com/2024/07/04/iowa-businesses-fined-over-child-labor-laws/ [https://perma.cc/2ANY-RUPY].
4
Id.
5
In re Gault, 387 U.S. 1, 28 (1967).
6
Michael Schuman, History of Child Labor in the United States—Part 1: Little Children Working, U.S. Bureau of Labor Statistics: Monthly Labor Review (Jan. 2017) https://doi.org/10.21916/mlr.2017.1 [https://perma.cc/NCZ2-476H].
7
Id.
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Id.
9
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10
See id.; See also History.com Editors, Child Labor, History (Oct. 27, 2009), https://www.history.com/articles/child-labor [https://perma.cc/3V4V-4RFP].
11
Schuman, supra note 5.
12
Id. “In 1900, 25,000 of the nearly 100,000 textile workers in the South were children under 16. By 1904, overall employment of children had increased to 50,000, with 20,000 children under 12 employed.”
13
History.com Editors supra note 9.
14
Id.
15
Michael Schuman, History of Child Labor in the United States—Part 1: The Reform Movement, U.S. Bureau of Labor Statistics: Monthly Labor Review (Jan. 2017) https://doi.org/10.21916/mlr.2017.2 [https://perma.cc/484Q-AXWQ].
16
Id.
17
Id.
18
Id.
19
Id.
20
Keating-Owen Child Labor Act (1916), Nat’l Archives: Milestone Documents, https://www.archives.gov/milestone-documents/keating-owen-child-labor-act [https://perma.cc/DX3L-9R4S].
21
Keating-Owen Child Labor Act, 39 Stat. 675 (1916).
22
Id.
23
247 U.S. 251 (1918).
24
Id.
25
Hansan, supra note 10.
26
Id.
27
See National Industrial Recovery Act, 48 Stat. 195 (1933), famously declared unconstitutional in L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
28
Hansan, supra note 10.
29
Id.
30
See Nina Mast, Child Labor Standards: State Solutions to the U.S. Worker Rights Crisis, Econ. Pol’y Inst. (July, 2025), https://www.epi.org/publication/child-labor-standards-state-solutions-to-the-u-s-worker-rights-crisis/#:~:text=Implement%20or%20expand%20work%20hour,week%2C%20including%20during%20school%20weeks. [https://perma.cc/UD5F-KXXC].
31
29 U.S.C. §§ 201–219.
32
Id.
33
Id.
34
Id.
35
Id.
36
U.S. Dep’t of Labor, Wage & Hour Div., Handy Reference Guide to the Fair Labor Standards Act, (Nov. 2023) https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-flsa [https://perma.cc/WH2V-DTPX].
37
See Mast, supra note 26.
38
Id.
39
See Sherer & Mast, supra note 1.
40
Id.
41
Id.
42
Id.
43
Id.
44
Megan Henry, Ohio Gov. Mike DeWine vetoes bill that would have let 14, 15-year-olds work till 9 p.m. year-round, Ohio Capital Journal: The Rundown (Dec. 4, 2025), https://ohiocapitaljournal.com/briefs/ohio-gov-mike-dewine-vetoes-bill-that-would-have-let-14-15-year-olds-work-till-9-p-m-year-round/. [https://perma.cc/3CB7-AUZU].
45
Id.
46
See id.
47
See Steven Greenhouse, States Pushing to Expand Teen Workforce Risk Long-Term Damage, The Century Foundation(Mar. 20, 2023), https://tcf.org/content/commentary/states-pushing-to-expand-teen-workforce-risk-long-term-damage/ [https://perma.cc/SJ7A-6VQP].
48
Nina Mast, Youth Subminimum Wages and Why They Should Be Eliminated: Young Workers Face Pay Discrimination in 34 States and DC, Econ. Pol’y Inst. (Jan. 8, 2024), https://www.epi.org/blog/youth-subminimum-wages/ [https://perma.cc/Y2HN-5P2D].
49
Amanda Rooker, Iowa Republican Leaders Clash With Federal Government Over Child Labor Law Violations, KCCI(Jul. 5, 2024), https://www.kcci.com/article/iowa-republican-leaders-clash-with-federal-government-over-child-labor-law-violations/61491107 [https://perma.cc/WX3T-7D3F].
50
Sandra Novatko, Child Labor Laws: What Employers Need to Know, FrankCrum Blog (Apr. 18, 2024), https://blog.frankcrum.com/child-labor-laws-what-employers-need-to-know [https://perma.cc/RV79-7KMP]; See also Sherer & Mast, supra note 1.
51
See Davin Curtiss, The Fair Labor Standards Act and Child Labor in Agriculture, 20 J. Corp. L. 303, 317 (Winter 1995).
52
Mast, supra note 26.
53
Id.
54
Michael Smith, Constitutional Interpretation and Zombie Provisions, 40 GA. ST. U. L. REV. 603, 606 (2024).
55
Under the Supremacy Clause, U.S. Const. art. VI, cl. 2, federal law preempts conflicting state statutes; see also McCulloch v. Maryland, 17 U.S. 316 (1819) (federal law takes precedence over state law, and states may not impede legitimate federal action)).
56
See Chris Micheli, Retroactive v. Prospective Legislation in California, California Globe (Sept. 2025), https://californiaglobe.com/fr/retroactive-v-prospective-legislation-in-california/ [https://perma.cc/DH36-F7AW].
57
See Alexander Southwell & Zenab Ifran, State Attorneys General Step Up as Federal Enforcement Gap Grows, BLOOMBERG L. (June 2025), https://news.bloomberglaw.com/us-law-week/state-attorneys-general-step-up-as-federal-enforcement-gap-grows [https://perma.cc/5846-UP6U]; see also Michiko Lynch, Filling the Gaps: How Some States Advance Civil Rights Enforcement Efforts, Berkshire Blog (Jan. 2026), https://www.berkshireassociates.com/blog/filling-the-gaps-how-some-states-advance-civil-rights-enforcement-efforts?hs_amp=true [https://perma.cc/J8XZ-45TH].
58
Terri Gerstein, Policies for States and Localities to Fight Oppressive Child Labor, Econ. Pol’y Inst. (Feb. 2024), https://www.epi.org/publication/fight-oppressive-child-labor/ [https://perma.cc/76DR-GKF9].
59
Id.
60
Harm Venhuizen, Some Lawmakers Propose Loosening Child Labor Laws to Fill Worker Shortage, PBS NewsHour (May 2023), https://www.pbs.org/newshour/politics/some-lawmakers-propose-loosening-child-labor-laws-to-fill-worker-shortage [https://perma.cc/5SLM-PJ4L].
61
Id.
62
U.S. Dep’t of Labor, Executive Summary: 2024 Findings on the Worst Forms of Child Labor Bureau of Int’l Labor Affairs (2025) https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2024/Executive-Summary-2024-Findings-on-the-Worst-Forms-of-Child-Labor.pdf [https://perma.cc/9TVG-DNM3].
63
Sharon L. Davies, The Jurisprudence of Willfulness: An Evolving Theory of Excusable Ignorance, 48 Duke Law Journal 341, 342 (1998).
64
Id.
65
See FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012) (“A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”).
66
U.S. Const. amend. V.
67
United States v. Williams, 553 U. S. 285, 304 (2008).
68
See Sherer & Mast, supra note 1.