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106th Congress                                                   Report
  1st Session           HOUSE OF REPRESENTATIVES                 106-31

_______________________________________________________________________



 
 AMENDING THE FAIR LABOR STANDARDS ACT OF 1938 TO PERMIT CERTAIN YOUTH 
               TO PERFORM CERTAIN WORK WITH WOOD PRODUCTS

                                _______
                                

 February 24, 1999.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______


   Mr. Goodling, from the Committee on Education and the Workforce, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 221]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and the Workforce, to whom was 
referred the bill (H.R. 221) to amend the Fair Labor Standards 
Act of 1938 to permit certain youth to perform certain work 
with wood products, having considered the same, report 
favorably thereon without amendment and recommend that the bill 
do pass.

                                Purpose

    The purpose of H.R. 221 is to amend the Fair Labor 
Standards Act of 1938 to allow certain youth to be employed 
under certain conditions in businesses where machinery is used 
to process wood products.

                            Committee Action

                             106TH CONGRESS

    Representative Joseph R. Pitts introduced H.R. 221, along 
with 13 cosponsors, on January 6, 1999. The Committee on 
Education and the Workforce favorably reported the bill, 
without amendment, by voice vote, on February 10, 1999.

                             105TH CONGRESS

    The Subcommittee on Workforce Protections held a hearing on 
April 21, 1998, on the effect of the Fair Labor Standards Act 
on Amish families. The following individuals testified at the 
hearing: the Honorable Joseph R. Pitts, Member of Congress, 
representing the 16th District of Pennsylvania; Mr. Christ 
Blank, Chairman of the Old Order Amish Steering Committee--
National, Kinzers, Pennsylvania; and Mr. William Burkholder, 
owner of a sawmill, Centerville, Pennsylvania. Representative 
Pitts introduced H.R. 4257, with eight cosponsors, on July 16, 
1998. On July 22, 1998, the Committee on Education and the 
Workforce ordered H.R. 4257 favorably reported, as amended, by 
voice vote. The House passed the bill, with an amendment in the 
nature of a substitute, by voice vote under suspension of the 
rules on September 28, 1998. The Senate took no action on the 
bill prior to the adjournment of the 105th Congress.

                     Committee Statement and Views

                               Background

    The Fair Labor Standards Act of 1938 \1\ (FLSA) restricts 
the employment of persons under the age of 18. The FLSA's 
restriction on child labor is very general: ``No employer shall 
employ any oppressive child labor in commerce or in the 
production of goods for commerce or in any enterprise engaged 
in commerce or in the production of goods for commerce.'' \2\ 
``Oppressive child labor'' is defined as any employment in 
mining or manufacturing or ``in any occupation which the 
Secretary of Labor shall find and by order declare to be 
particularly hazardous for the employment of children * * * or 
detrimental to their health or well-being. * * *'' \3\ The 
Department of Labor has issued a series of ``Hazardous 
Occupation Orders'' which further delineate what constitutes 
``oppressive child labor'' under the FLSA.\4\
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    \1\ 29 U.S.C. Sec. 201-219.
    \2\ 29 U.S.C. Sec. 212(c).
    \3\ 29 U.S.C. Sec. 203(l)(1) and (2).
    \4\ 29 C.F.R. Sec. 570.50-570.68.
---------------------------------------------------------------------------
    Over the years, Congress has enacted a number of exceptions 
to the general restrictions on child labor in the FLSA and the 
Hazardous Occupation Orders. These exceptions address specific 
occupations and permit persons under the age of 18 to work in 
circumstances that would otherwise be prohibited. For example, 
the FLSA has been amended to allow persons under the age of 18 
certain employment in agriculture \5\ and newspaper 
delivery.\6\ In 1996, the FLSA was amended to allow 16- or 17-
year-old employees to work around certain scrap paper balers 
and compactors so long as those employees are not operating the 
baler or compactor and certain other precautions are taken.\7\ 
In 1998, restrictions under the Department of Labor's Hazardous 
Occupation Order on the driving of motor vehicles by 17-year-
old employees were amended by Public Law 105-334.
---------------------------------------------------------------------------
    \5\ 29 U.S.C. Sec. 213(c).
    \6\ 29 U.S.C. Sec. 213(d).
    \7\ 29 U.S.C. Sec. 213(c)(5).
---------------------------------------------------------------------------
    With regard to sawmills and places of employment with 
woodworking equipment, the FLSA prohibits any person under the 
age of 16 from working in manufacturing,\8\ which the 
Department of Labor has determined includes sawmills and 
woodworking. In addition, Hazardous Occupation Order No. 4 (HO 
4) \9\ prohibits any 16-or 17-year-old from doing any work in a 
sawmill building, the log pond area, and the log storage yard. 
Outside of those areas, 16- or 17-year-olds may perform 
clerical and certain clean-up activities. Hazardous Order No. 5 
(HO 5) \10\ prohibits 16- or 17-year-olds from operating, 
assisting to operate, setting up, adjusting, repairing, oiling 
or cleaning power-driven woodworking machines. Woodworking 
machines are any fixed or portable power-driven machines that 
are used or designed for cutting wood or veneer.
---------------------------------------------------------------------------
    \8\ 29 U.S.C. Sec. 203(l).
    \9\ 29 C.F.R. Sec. 570.54.
    \10\ 29 C.F.R. Sec. 570.55.
---------------------------------------------------------------------------
    The Department of Labor does currently permit an exception 
to the prohibition on working with woodworking machines for 
apprentices or student-learners, provided they are employed 
under specific conditions. An apprentice must be employed in a 
craft recognized as an apprenticeable trade that is registered 
with the Bureau of Apprenticeship and Training (BAT) at the 
Department of Labor or with a State agency approved by BAT. 
Student-learners must be enrolled in a course of study and 
training in a vocational training program sanctioned and 
monitored by the State.
    The need for H.R. 221 grew out of a series of enforcement 
actions which the Department of Labor began initiating in 1996 
against members of the Amish community for employing persons 
under the age of 18 in sawmills and small woodworking shops. As 
a result of these enforcement actions, several Amish shop 
owners and sawmill operators were assessed fines of several 
thousands of dollars. The enforcement actions also ended many 
of the employment opportunities for Amish youth under the age 
of 18.\11\
---------------------------------------------------------------------------
    \11\ Hearing on the Effect of the Fair Labor Standards Act of 1938 
on Amish Families before the Subcommittee on Workforce Protections, 
Committee on Education and the Workforce, U.S. House of 
Representatives, 105th Congress, Second Session, Serial No. 105-94, p. 
6-10.
---------------------------------------------------------------------------
    In the Amish community, youth conclude their formal 
education with the eighth grade and then progress to informal, 
hands-on education, working with their families to acquire 
vocational experience and practical skills in areas such as 
farming and carpentry. As Mr. Christ K. Blank, Chairman of the 
Old Order Amish Steering Committee--National, related to the 
Subcommittee on Workforce Protections in April 1998: \12\
---------------------------------------------------------------------------
    \12\ Ibid.

          Typically, the Amish youth leave school at the end of 
        the eighth grade, but their education does not stop 
        there. Instead, they only begin to absorb in earnest, 
        the knowledge and skills needed to earn a livelihood 
        and support a family. Upon completion of the eight 
        terms of elementary school, many Amish children are 
        enrolled in an informal vocation class of learning by 
        doing under parent and church supervision to further 
        prepare them to enter into the adult work place. This 
        informal vocational class is recognized by the United 
        States Supreme Court ruling in Wisconsin v. Yoder, as 
        an alternative to the compulsory school attendance 
---------------------------------------------------------------------------
        laws.

    Formal high school education beyond the eighth grade is 
contrary to Amish beliefs, which require school age children to 
learn by doing the skills directly relevant to their role as an 
adult in the Amish community. Mr. Blank described this aspect 
of the Amish culture to the Subcommittee: \13\
---------------------------------------------------------------------------
    \13\ Ibid.

          At age 14, an Amish boy or girl is considered to be 
        ready for a full course of training. A training that 
        requires ``learning by doing.'' This adolescent period 
        is of utmost importance to our religious status. We 
        must not tolerate idleness during these adolescent 
        years, therefore we see a dire need that our youth 
        learn a trade or remain occupied, preferably under 
        supervision of a parent or church member. It is a long-
        standing Amish belief and tradition to instill good 
        work ethics in our children at a young age and to start 
        training a child at a fairly young age to become a 
        self-supporting, respectful and law-abiding citizen. * 
        * * We strongly believe the ages 14 through 17 to be a 
        very tender receptive age in which to instill these 
        long-standing Amish values and work ethics in our 
        children. We believe that forced idleness in this age 
        to be detrimental to our long-standing Amish way of 
        raising our children and teaching them to become good 
---------------------------------------------------------------------------
        productive citizens.

    In the past, conflict between the Amish belief and practice 
of ending formal education at age 14 and thereafter undertaking 
``learning by doing,'' and the federal child labor laws which 
prohibit or restrict many types of employment by persons under 
the age of 18 was minimized by the Amish community's reliance 
on farming and agriculture as the primary vocation. As 
mentioned above, the FLSA includes provisions specific to 
agriculture relating to the employment of persons under the age 
of 18, which are less restrictive than those that would 
otherwise apply, particularly for work on family farms. 
Economic pressures over the years, including the rising cost of 
land, have forced many Amish families out of agricultural 
occupations. The need to generate income to purchase land and 
pay taxes and medical bills has forced more and more Amish 
families into other non-agricultural occupations such as 
woodworking and carpentry. Mr. Blank described these changes to 
the Subcommittee: \14\
---------------------------------------------------------------------------
    \14\ Ibid.

          We recognize that, historically, the Child Labor laws 
        have been more lenient on farm labor, especially a 
        family farm. For many years our livelihood was based 
        largely on agriculture and for many still is. However, 
        due to many reasons beyond our control, the trend is 
        gradually forcing more and more of our youth to learn 
        other trades. We try to encourage an occupation where 
        such youth is learning by doing by working at a place 
        where his father or a member of the church is available 
        to supervise him.
          Due to the high cost of our dwindling supply of farm 
        land, more and more of our families are being forced to 
        start small businesses such as woodworking shops, 
        welding shops, sawmills, pallet shops, etc. This is in 
        keeping with the Amish tradition of operating a family 
        business so the family can work together.

    The current child labor laws thus directly and 
significantly interfere with the ability of Amish families to 
carry out an important part of their beliefs, culture and 
lifestyle. The Amish belief that formal education should end at 
the age of 14 and that Amish youth should thereafter ``learn by 
doing'' is effectively undermined when these young people are 
prevented by federal labor law from being trained at that age 
in the workplaces and occupations that are most available to 
them within the Amish community.
    Members of Congress and representatives of the Amish 
community have attempted to work with the Department of Labor 
to find a solution to the conflict between the child labor 
restrictions under the FLSA and the needs of the Amish to carry 
out their religious beliefs and lifestyle. Members of Congress 
met on several occasions with officials of the Department of 
Labor to request assistance in reaching a practical solution to 
the problem.\15\ The conference report for the fiscal year 1998 
appropriations bill for the Departments of Labor, Health and 
Human Services, and Education also urged the Department of 
Labor to resolve the child labor issues relating to the Amish 
community, while taking into account the special needs of the 
Amish.\16\ Unfortunately the Department of Labor's response to 
these efforts has consistently been unwillingness to consider 
any changes in regulations and opposition to changes by 
legislation.
---------------------------------------------------------------------------
    \15\ The efforts of Members of Congress to work with the Department 
of Labor to accommodate the needs of the Amish are described in letters 
dated August 7, 1997 and December 22, 1997 from Reps. Joseph Pitts, 
Mark Souder, John Peterson, and Phil English to John Fraser, 
Administrator, Wage and Hour Division and Alexis Herman, Secretary of 
Labor, respectively, and letter dated November 12, 1997 from Senator 
Arlen Specter to Alexis Herman, Secretary of Labor.
    \16\ Conference Report to accompany H.R. 2264, making 
appropriations for the Departments of Labor, Health and Human Services, 
and Education, and related agencies for the fiscal year ending 
September 30, 1998, and for other purposes, House Report No. 105-390, 
p. 68.
---------------------------------------------------------------------------

                              Legislation

    H.R. 221 is a reasonable and practical solution to the 
problem stemming from the Department of Labor's application of 
the child labor provisions of the FLSA to youth in the Amish 
community. The bill would amend the FLSA to allow Amish youth 
to work under certain conditions in sawmills and other 
workplaces where machinery is used to process wood products.
    H.R. 221 would permit an individual who is at least 14 
years of age and who is a member of a religious sect or 
division thereof whose established teachings do not permit 
formal education beyond the eighth grade to be employed inside 
or outside places of business where machinery is used to 
process wood products.
    H.R. 221 provides a number of safety precautions pertaining 
to those persons under the age of 18 (``minor'') who are 
permitted by the bill to work in sawmills and other workplaces 
containing power-driven woodworking equipment.
    First, the minor may not, under any circumstances, operate 
or assist in the operation of power-driven woodworking 
machines.
    Second, the minor must be supervised by an adult relative 
of the minor or by an adult member of the same religious sect 
or division of a sect as the minor.
    Third, the minor must be protected from wood or other 
flying debris within the workplace by a barrier appropriate to 
the potential hazard of such wood particles or flying debris or 
by maintaining a sufficient distance from machinery in 
operation. The language of H.R. 221 is intended to provide 
safety but also flexibility: a sawmill cutting heavy trees into 
large boards would require a different type of barrier or a 
different distance to be maintained than would a woodworking 
shop which uses and cuts much smaller pieces of wood. The 
requirement for a barrier does not necessarily require that the 
minor be kept in a separate room or outside of the sawmill or 
workplace in which the woodworking equipment is located. The 
barrier used may be temporary, but it should be substantial 
enough to provide protection against injury to the minor from 
pieces of wood or other material which may be thrown in the 
course of cutting logs or other wood products.
    Fourth, the minor must be required to use personal 
protective equipment to prevent exposure to excessive levels of 
noise and sawdust. Standards regarding exposure to sawdust and 
noise and the use of personal protective equipment to protect 
against harmful levels of exposure in the workplace have been 
established under the Occupational Safety and Health 
Act.17 This provision of H.R. 221 is intended not to 
require new or additional standards but to reinforce the 
importance of those standards to individuals under the age of 
18 for whom the bill applies.
---------------------------------------------------------------------------
    \17\ 29 U.S.C. Sec. 651-678. Regulations on exposure to dust and 
noise are at 29 U.S.C. Sec. 1910.1000 and at 29 C.F.R. Sec. 1910.95. 
Sawmills are generally regulated at 29 C.F.R. Sec. 1910.265, and wood-
working machinery is regulated at 29 C.F.R. Sec. 1910.213.
---------------------------------------------------------------------------
    During the Committee's markup of H.R. 221, Representative 
Lynn C. Woolsey offered an amendment that would have prevented 
an employer who employed an individual pursuant to H.R. 221 
from utilizing the youth minimum wage under Section 6(g) of the FLSA. 
The FLSA allows any employer to pay a youth minimum wage of not less 
than $4.25 an hour to employees who are under 20 years of age during 
the first 90 consecutive calendar days after initial employment. Rep. 
Woolsey's amendment was defeated by vote by the Committee. The youth 
minimum wage was passed, on bipartisan basis, in 1996 and is available 
to all employers covered by the FLSA. There is no reason for singling 
out the Amish as the only employers who would not be allowed to use it.
    A second amendment, sponsored by Representative Dale E. 
Kildee, would have conditioned the provisions of the bill on 
whether the employer prepared and submitted details reports to 
the Secretary of Labor on any work related injury or fatality 
of an employee under age 18. Since there was no definition of 
``work-related'' in the amendment, any injury in or around the 
workplace occurring to an employee under age 18 requiring more 
than first aid would likely be covered. A strained ankle 
incurred outside a woodworking and having nothing to do with 
being around woodworking equipment would be covered by the 
Kildee amendment. If the employer failed to submit a detailed 
report on the ankle injury to the Department of Labor, would 
potentially result in substantial retrospective liability from 
having employed the individual in the first place. The 
Department of Labor, under the authority of the Occupational 
Safety and Health Act, already has requirements for the 
recording and reporting of injuries or fatalities on the 
job.18 These requirements for recording and 
reporting injuries and fatalities apply to employers of Amish 
employees in the same way they apply to all other employers. 
The Committee does not believe that Amish woodworking shops 
should be singled out for additional reporting requirements, 
particularly when there is no reasonable basis, such as 
improved safety, shown for this additional requirement.
---------------------------------------------------------------------------
    \18\ 29 U.S.C. Sec. 657(c)(2).
---------------------------------------------------------------------------
    In a letter dated February 9, 1999, to the Chairman of the 
Committee on Education and the Workforce on behalf of the 
Department of Labor, the Secretary of Labor expressed the 
Department's concerns that the protections provided in the 
legislation considered during the 105th Congress were 
inadequate.19 However, the Department of Labor again 
offered no suggested changes to the legislation and, as 
described above, the Department of Labor has been unwilling 
over the past several years to provide a practical solution and 
accommodation for the Amish seeking to preserve their beliefs 
and lifestyle.
---------------------------------------------------------------------------
    \19\ Letter dated February 9, 1999, from Alexis M. Herman, 
Secretary of Labor, U.S. Department of Labor, to the Honorable William 
F. Goodling, Chairman, Committee on Education and the Workforce, U.S. 
House of Representatives.
---------------------------------------------------------------------------

                     Constitutionality of H.R. 221

    Subsequent to House passage of H.R. 4257 in the 105th 
Congress, the U.S. Department of Justice sent a letter to 
Senator Specter regarding constitutional issues raised by H.R. 
4257.20 The identical letter, with updated 
references, was sent to Chairman Goodling on February 9, 
1999.21 The Department of Justice letter states 
that, in its view, the bill would ``raise serious concerns 
under the Establishment Clause of the First Amendment to the 
Constitution.'' However, the Department of Justice also stated 
that ``[o]ur views are necessarily tentative, because of 
several factual questions * * * as to which we do not have 
sufficient information.''
---------------------------------------------------------------------------
    \20\ Letter dated September 25, 1998, from L. Anthony Sutin, Acting 
Assistant Attorney General, U.S. Department of Justice, to the 
Honorable Arlen Specter, Chairman, Subcommittee on Labor, Health and 
Human Services, and Education. Committee on Appropriations, U.S. 
Senate.
    \21\ Letter dated February 9, 1999, from Dennis K. Burke, Acting 
Assistant Attorney General, U.S. Department of Justice, to the 
Honorable William Goodling, Chairman, Committee on Education and the 
Workforce, U.S. House of Representatives.
---------------------------------------------------------------------------
    The Committee believes that the legislation embodied in 
H.R. 4257 in the 105th Congress and H.R. 221 in the 106th 
Congress is constitutional.
    The Department of Justice letter completely ignores the 
fact that, as described above, numerous exceptions and special 
provisions to the FLSA's general provisions have been enacted, 
including several that pertain to the application of the child 
labor restrictions. These exceptions and special provisions 
have all been designed to address particular circumstances 
where the general restrictions on child labor have created a 
particular burden and are deemed excessively restrictive to 
protect the well being of persons under the age of 18. H.R. 
221, in granting narrow and limited relief in one more such 
situation, is in line with many previous amendments to the 
FLSA. H.R. 221 is not special relief of a type granted to no 
other group in society. There is no reason to consider the 
Amish less deserving of carefully crafted relief than any 
secular group or occupation.
    The fact that Congress has created numerous FLSA exceptions 
and special provisions for other groups and occupations is an 
important factor in whether the relief granted in H.R. 221 is 
an Establishment of Religion. In Rojas v. Fitch,22 
the exemption for religious employers from federal and state 
unemployment taxes was challenged as an unconstitutional 
Establishment of Religion. The Court of Appeals upheld the 
exemption, stating that, ``the current exemption for religious 
employment * * * rests within the context of a variety of other 
exemptions, all of which appear to share a common secular 
purpose. Efficient administration of the unemployment 
compensation system is particularly enhanced through the 
exemptions for religion because it eliminates the need for 
government to review employment decisions made on the basis of 
religious rationales.'' 23 Similarly here, the 
provisions of H.R. 221 cannot be viewed separately from the 
many previous exemptions and special provisions in the FLSA 
that have been enacted since 1938 in order to address 
particular burdens or unnecessary restrictions imposed by the 
general provisions of the law.
---------------------------------------------------------------------------
    \22\ 127 F.3d 184 (1st Cir., 1997), cert. denied 118 S.Ct. 2341 
(1998).
    \23\ 127 F.3d at 188.
---------------------------------------------------------------------------
    The Department of Justice letter also shows little 
understanding or respect for the dilemma facing the Amish as 
they seek to maintain their religious lifestyle in changing 
circumstances. The Department of Justice letter dismisses the 
Amish tradition of ``learning by doing'' certain trades and 
occupations as simply a matter of economic choice by the Amish. 
But as the Supreme Court recognized in Wisconsin v. 
Yoder,24 the Amish religion is tied to a whole 
lifestyle that cannot be easily separated between religious and 
secular aspects: 25
---------------------------------------------------------------------------
    \24\ 406 U.S. 205, 92 S.Ct. 1526 (1972).
    \25\ 406 U.S. at 210.

        * * * As a result of their common heritage, Old Order 
        Amish communities today are characterized by a 
        fundamental belief that salvation requires life in a 
        community separate and apart from the world and world 
        influence. This concept of life aloof from the world 
        and its values is central to their faith.
          A related feature of the Old Order Amish communities 
        is their devotion to a life in harmony with nature and 
        the soil, as exemplified by the simple life of the 
        early Christian era that continued in America during 
        much of our early national life. Amish beliefs require 
        members of the community to make their living by 
        farming or closely related activities. Broadly 
        speaking, the Old Order Amish religion pervades and 
        determines the entire mode of life of its adherents. * 
        * *

    Establishment Clause cases before the U.S. Supreme Court 
have covered a wide variety of factual settings, from aid to 
religious schools to chaplains in state 
legislatures.26 The only Supreme Court decision on 
an Establishment Clause challenge to a legislative exemption to 
an employment law of general application is Church of Jesus 
Christ of Latter-Day Saints v. Amos.27 The Amos case 
involved a challenge to the exemption for religious 
organizations from Title VII's prohibition on discrimination on 
the basis of religion.28 The Supreme Court upheld 
the exemption, finding that Congress had a permissible 
``secular legislative purpose'' in granting the exemption: ``It 
is a permissible legislative purpose to alleviate significant 
governmental interference with the ability of religious 
organizations to define and carry out their religious 
missions.'' 29
---------------------------------------------------------------------------
    \26\ See ``The Law of Church and State: Developments in the Supreme 
Court Since 1980'' (January 9, 1998), CRS pub. 98-65A by David M. 
Ackerman.
    \27\ 483 U.S. 327, 107 S.Ct. 2862 (1987).
    \28\ 42 U.S.C. Sec. 2000e-1.
    \29\ 483 U.S. at 335.
---------------------------------------------------------------------------
    In its letters on H.R. 4257 and H.R. 221, the Department of 
Justice stated that it does not have sufficient factual basis 
on which to evaluate whether this ``purpose'' test, as stated 
in Amos, is met with regard to the Amish and the relief granted 
by H.R. 221. However, the Committee has developed such a 
factual record. As discussed above, the Amish community has, 
for a number of reasons, been forced to rely less on 
agriculture and more on other occupations, including sawmills 
and woodworking shops. As Mr. Blank testified in 1998 before 
the Subcommittee on Workforce Protections, the Amish belief in 
``learning by doing'' is an integral part of Amish training and 
upbringing of young people. But such means of training within 
the Amish community is possible only if the trades and 
occupations of the Amish are available to these young people. 
For the Amish, prohibiting young people from practically 
learning the trades that are increasingly the trades and 
occupations which the Amish are dependent upon constitutes 
``significant governmental interference'' with their lifestyle 
and religious mission.
    H.R. 221 is distinguished from the legislative exemption 
that was challenged in Amos in that it does not apply to all 
religious organizations. H.R. 221 applies only if the 
individual involved is between the ages of 14 and 18 and ``is a 
member of a religious sect or division thereof whose 
established teachings do not permit formal education beyond the 
eighth grade.'' In some cases the courts have suggested that 
any legislation that distinguishes among religious groups be 
subject to stricter scrutiny than would be the case if the 
legislation benefited all religious organizations. E.g., Larson 
v. Valente,\30\ (holding unconstitutional a state law granting 
some religious organizations, but not others, exemption from 
registration and disclosure of charitable contributions); 
Children's Healthcare v. Vladeck,\31\ (holding unconstitutional 
provisions of Medicare and Medicaid granting special payment 
conditions for Christian Science sanitoria).
---------------------------------------------------------------------------
    \30\ 456 U.S. 228 (1982).
    \31\ 938 F.Supp 1466 (D.Ct. MN, 1996).
---------------------------------------------------------------------------
    Even in these cases, however, differentiating among 
religious groups is not per se unconstitutional; it simply 
triggered stricter scrutiny by the court as to whether Congress 
or the state legislature had a sound reason for differentiating 
among religious groups. The scope of the relief must be 
appropriate to the legislative purpose. For example, in 
Vladeck, the district court found that the legislative purpose 
of accommodating Christian Scientists in the Medicare and 
Medicaid programs was permissible and appropriate, but that by 
specifically naming Christian Science in the statute, Congress 
had foreclosed the same relief to other similarly situated 
religious groups: ``there is no guarantee that a religious 
group in a similar situation to the Christian Scientists (i.e., 
a religious group believing in faith healing which has set up 
certain institutions to promote such healing) would receive 
similar accommodation from Congress.'' \32\
---------------------------------------------------------------------------
    \32\ 938 F.Supp at 1480.
---------------------------------------------------------------------------
    In contrast to the Medicare and Medicaid statutes, the 
exemption in H.R. 221 is available to any similarly situated 
religious group. Further, the scope of the relief from 
otherwise applicable child labor restrictions is directly 
related to the legislative purpose of relieving a conflict 
between the child labor regulations and the needs of those 
religious groups who believe that formal education should end 
after the eighth grade.
    Finally the Department of Justice letter raises the concern 
that in order to be constitutional, H.R. 221 may not place 
Amish youth at ``significant threat of harm.'' As is described 
above, H.R. 221 includes several protections to ensure that 
those youth who are permitted to train and work in workplaces 
in which they are now prohibited are not placed in any 
significant threat of harm.

                               Conclusion

    The Committee agrees with the Department of Labor that the 
benefits of facilitating the cultural and religious traditions 
of the Amish must be balanced against the safety and welfare of 
the children. The Committee believes that this legislation 
strikes an appropriate balance between the cultural and safety 
issues surrounding the employment of Amish youth in certain 
businesses.

                                Summary

    H.R. 221 would amend the Fair Labor Standards Act of 1938 
to allow teenagers to work in businesses where machinery is 
used to process wood products if they are: at least 14 years of 
age but under the age of 18; a member of a religious sect or 
division whose established teachings do not permit formal 
education beyond the eighth grade; supervised by an adult 
relative or an adult who is a member of the same religious sect 
or division; not allowed to operate or assist in the operation 
of power-driven woodworking machines; protected from flying 
debris or wood particles by a barrier appropriate to the 
potential hazard of such wood particles or flying debris or by 
maintaining a sufficient distance from machinery in operation; 
and protected from excessive levels of noise and sawdust by 
personal protective equipment.

                      Section-by-Section Analysis

                          Section 1. Exemption

    This provision would amend section 13(c) of the Fair Labor 
Standards Act of 1938 to specify that in the administration and 
enforcement of the child labor provisions of the Act, it shall 
not be considered oppressive child labor for an individual who 
is at least 14 but under the age of 18, and is a member of a 
religious sect or division thereof whose established teachings 
do not permit formal education beyond the eighth grade, to be 
employed inside or outside places of business where machinery 
is used to process wood products. The employment of such 
individual shall be permitted if the individual is supervised 
by an adult relative of the individual or is supervised by an 
adult member of the same religious sect or division as the 
individual; if the individual does not operate or assist in the 
operation of power-driven woodworking machines; if the 
individual is protected from wood particles or other flying 
debris within the workplace by a barrier appropriate to the 
potential hazard of such wood particles or flying debris or by 
maintaining a sufficient distance from machinery in operation; 
and if the individual is required to use personal protective 
equipment to prevent exposure to excessive levels of noise and 
sawdust.

                       Explanation of Amendments

    The bill was ordered reported without amendment.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch. This bill, H.R. 221, amends the Fair Labor Standards 
Act to permit certain youth to perform certain work with wood 
products. The bill does not prevent legislative branch 
employees from receiving the benefits of this legislation.

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. This bill amends the Fair Labor Standards Act to 
permit certain youth to perform certain work with wood 
products. As such, the bill does not contain any unfunded 
mandates and decreases federal mandates on the private sector.

                             Rollcall Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee Report to include for 
each record vote on a motion to report the measure or matter 
and on any amendment offered to the measure of matter the total 
number of votes cast for and against and the names of the 
Members voting for and against.





  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

   New Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the House of Representatives and section 308(a) of the 
Congressional Budget Act of 1974 and with respect to 
requirements of clause 3(c)(3) of rule XIII of the House of 
Representatives and section 402 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for H.R. 221 from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 11, 1999.
Hon. William F. Goodling,
Chairman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 221, a bill to 
amend the Fair Labor Standards Act of 1938 to permit certain 
youth to perform certain work with wood products.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Christina 
Hawley Sadoti.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

H.R. 221--A bill to amend the Fair Labor Standards Act of 1938 to 
        permit certain youth to perform certain work with wood products

    H.R. 221 would amend the Fair Labor Standards Act (FLSA) to 
permit youths between the ages of 14 and 18 who are members of 
a religious sect or division that does not permit formal 
teaching beyond the eighth grade to be employed in the 
processing of wood products. Absent this legislation, certain 
Amish-owned sawmills could face fines for child labor law 
violations. CBO estimates these fines would be less than 
$30,000 each year. Therefore, enactment of this bill would 
result in a reduction of receipts from such fines, but the 
amount is likely to be insignificant. Nevertheless, pay-as-you-
go procedures would apply.
    H.R. 221 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not have any significant effects on the budgets of 
state, local, or tribal governments.
    This estimate was prepared by Christina Hawley Sadoti 
(federal cost), Hester Grippando (revenues), Susan Sieg (impact 
on state, local, and tribal governments), and Ralph Smith 
(impact on the private sector).
    This estimate was approved by Paul N. Van de Water, 
Assistant Director for Budget Analysis.

 Statement of Oversight Findings of the Committee on Government Reform

    With respect to the requirement of clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives, the 
Committee has received no report of oversight findings and 
recommendations from the Committee on Government Reform and 
Oversight on the subject of H.R. 221.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 221. The Fair 
Labor Standards Act of 1938 has been determined, by the Supreme 
Court, to be within Congress' Constitutional authority. In 
United States v. Darby, 312 U.S. 100 (1941) and OPP Cotton 
Mills, Inc., et al. v. Administrator of Wage and Hour Division 
of Department of Labor, 312 U.S. 126 (1941), the Supreme Court 
found that the regulation of hours and wages of work to be 
within the scope of Congressional powers under Article 1, 
Section 8, Clause 3 of the Constitution of the United States. 
H.R. 221 amends the Fair Labor Standards Act of 1938. Because 
H.R. 221 modifies but does not extend the federal regulation of 
wage and hour laws, the Committee believes that the Act falls 
within the same scope of Congressional authority as the Fair 
Labor Standards Act of 1938.

                           Committee Estimate

    Clauses 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 221. However, clause 3(d)(3)(B) of that rule provides that 
this requirement does not apply when the Committee has included 
in its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

           SECTION 13 OF THE FAIR LABOR STANDARDS ACT OF 1938

                               exemptions

  Sec. 13. (a) * * *

           *       *       *       *       *       *       *

  (c)(1) * * *

           *       *       *       *       *       *       *

  (6)(A) Subject to subparagraph (B), in the administration and 
enforcement of the child labor provisions of this Act, it shall 
not be considered oppressive child labor for an individual 
who--
          (i) is at least 14 but under the age of 18, and
          (ii) is a member of a religious sect or division 
        thereof whose established teachings do not permit 
        formal education beyond the eighth grade,
to be employed inside or outside places of business where 
machinery is used to process wood products.
  (B) The employment of an individual under subparagraph (A) 
shall be permitted--
          (i) if the individual is supervised by an adult 
        relative of the individual or is supervised by an adult 
        member of the same religious sect or division as the 
        individual;
          (ii) if the individual does not operate or assist in 
        the operation of power-driven woodworking machines;
          (iii) if the individual is protected from wood 
        particles or other flying debris within the workplace 
        by a barrier appropriate to the potential hazard of 
        such wood particles or flying debris or by maintaining 
        a sufficient distance from machinery in operation; and
          (iv) if the individual is required to use personal 
        protective equipment to prevent exposure to excessive 
        levels of noise and saw dust.

                             MINORITY VIEWS

    The Fair Labor Standards Act (FLSA), prohibits minors under 
the age of 16 from working in manufacturing operations, 
including saw mills. The Secretary of Labor (through Hazardous 
Occupations Order No. 4) also prohibits minors under 18 years 
of age from working in saw mill operations and the logging 
industry. In addition, Hazardous Occupations Order No. 5 
specifically prohibits such youth from operating power driven 
wood-working machines. These protections serve two well known 
purposes: (1) to ensure that children are not employed in 
hazardous occupations and (2) to protect adult workers from 
unfair competition from child workers who do not yet have 
burden of supporting themselves.
    H.R. 221 amends the FLSA by permitting 14- through 17-year-
olds ``to be employed inside or outside of places of business 
where machinery is used to process wood products,'' 
1 occupations in which their employment would 
otherwise be prohibited; provided that the minor ``is a member 
of a religious sect or division thereof whose established 
teachings do not permit formal education beyond the eighth 
grade'' 2 and the minor is supervised by an adult 
relative or ``an adult member of the same religious sect or 
division'' 3 as the minor. H.R. 221 promotes the 
employment of minors in hazardous occupations. It invites the 
displacement of adult workers by minors who do not yet face the 
burden of supporting themselves. And it distinguishes among 
citizens, advantaging some and disadvantaging others, on the 
basis of an individual's religious beliefs.
---------------------------------------------------------------------------
    \1\ See H.R. 221, Section 1, at ``(6)(A).''
    \2\ Id., at ``(6)(A)(ii).''
    \3\ Id., at ``(6)(B)(i).''
---------------------------------------------------------------------------

                       safety and health concerns

    Injury data collected over several decades consistently 
show that the lumber and wood products industry is particularly 
hazardous work for adults, let alone children. The 1996 
occupational fatality rate of 25.6 work-related deaths per 
100,000 workers was more than five times the national average 
``all private industry'' rate of 5.1 per 100,000 workers and 
had actually increased over the 1995 rate. The occupational 
fatality rate in the lumber and wood products industry is 
higher than in either the construction industry or the trucking 
and warehousing industry. In 1996, 203 occupational fatalities 
occurred in the lumber and wood products industry. The 
frequency of all non-fatal injuries was almost twice as high in 
the lumber and wood products industry (14.2 per 100 full-time 
workers) as the national average for all industries (7.4 for 
every 100 workers).
    Even for those workers who do not operate power-driven 
equipment, saw mills present significant occupational risks. 
The Occupational Safety and Health Administration has 
documented examples of workers who were crushed by falling 
loads, run over by front-end loaders, caught under a fork lift, 
and injured by rolling logs. One witness, testifying on behalf 
of this legislation, told of how he lost several fingers when, 
during a moment of inattention, he carelessly set his hand on a 
conveyor belt and the belt ran his hand into a saw.
    Inexperience, smaller size, and lack of maturity all serve 
to make the potential risks faced by minors even greater than 
they are for adults. It is unreasonable to expect a fourteen 
year-old to maintain the kind of continuous safety concern we 
expect of adults.
    The Department of Labor opposes the bill based on these 
safety concerns: ``The Department of Labor is concerned that 
these conditions would not adequately protect the children's 
safety. Adult presence in the workplace would not be able to 
protect children from the split-second mistake that could cost 
them a finger, hand, or worse. Preventing children from 
operating machinery would still leave them at risk from 
forklifts, front-end loaders, falling loads, and rolling 
logs.''
    To ensure the Committee learns of injuries or fatalities 
that result from this legislation, Representative Kildee 
offered an amendment during the markup to require that 
employers report work-related injuries and deaths occurring to 
minors employed pursuant to H.R. 221 to the Department of 
Labor. The amendment is based upon a similar requirement 
contained in legislation enacted in the 104th Congress 
permitting 16- and 17-year-olds to load certain balers and 
compactors, Public Law 104-174, and is intended to ensure that 
specific information is readily available regarding the impact 
of this legislation on the health and safety of minors. If no 
injuries or fatalities occur to minors as a result of being 
employed inside or outside places of business where machinery 
is used to process wood products, the amendment places no 
additional burdens upon employers. However, in the event that 
minors are injured or killed as a result of the enactment of 
H.R. 221, Mr. Kildee's amendment, if adopted, would better 
enable policy makers to identify risks and to craft 
improvements to address those risks.
    The Occupational Safety and Health Act already requires the 
reporting of injuries or fatalities on the job. However, as Mr. 
Kildee pointed out in Committee, identifying Amish youth on the 
basis of OSHA reports would not be possible. The purpose of Mr. 
Kildee's amendment is to ensure there is accurate, readily 
available information regarding the impact of H.R. 221 on the 
health and safety of minors. The Majority contends that Amish 
saw mills and woodworking shops should not be singled out for 
additional reporting requirements ``when there is no reasonable 
basis, such as improved safety, shown for this additional 
requirement.''
    In fact, the amendment did not single out Amish saw mills 
or woodworking shops. H.R. 221 singles out the Amish be 
permitting employers, regardless of whether they are Amish, to 
employ Amish youth. Mr. Kildee's amendment only seeks to ensure 
that policy makers are sufficiently informed of the extent to 
which the newly authorized employment, in practice, may pose 
risks to the health and safety of those youth. Clearly, the 
absence of such information adversely affects the ability of 
policy makers to develop effective policies to improve the 
safety of minors. As Mr. Kildee stated during the markup, ``If 
minors are injured or killed as a result of enactment of H.R. 
221, we have a responsibility to ensure that we areboth aware 
of the fact and that we have the information necessary to develop the 
appropriate legislative response.''

                     displacement of adult workers

    H.R. 211 encourages the displacement of adult workers by 
hiring minors. On the basis of the child's religious beliefs, 
H.R. 221 permits certain children, as young as 14 years old, to 
be employed in occupational settings in which all other 
children have been excluded for more than 60 years. These 
children, unlike the adult workers with whom they will compete 
for jobs, do not yet face the burden of supporting themselves 
and a family. Rather, they continue to live in their parents' 
home and their financial needs remain the responsibility of 
their parents. As a consequence, these young workers are likely 
to be willing and able to work for substantially less money 
than the adults with whom they compete. This unfortunate aspect 
of the legislation is exacerbated by provisions of the Fair 
Labor Standards Act that permit the employment of those under 
20-years of age for up to ninety days at $4.25 an hour, 90 
cents an hour less than the minimum wage applicable to the 
overwhelming majority of adult workers.\4\
---------------------------------------------------------------------------
    \4\ See section 6(g) of the Fair Labor Standards Act of 1938, 29 
U.S.C. 206(g).
---------------------------------------------------------------------------
    An amendment offered in Committee by Ms. Woolsey sought to 
mitigate the unfair impact that this legislation will have on 
those adults who are not Amish by requiring that minors 
employed pursuant to H.R. 221 be paid at least the minimum 
wage. Defeated on a party-line vote, the Majority contends 
``there is no reason for singling out the Amish as the only 
employers who would not be allowed to use it [the sub-minimum 
wage].'' First, the Majority misrepresent their own bill. H.R. 
221 permits any employer to employ Amish youth ``inside or 
outside places of business where machinery is used to process 
wood products.'' Notwithstanding the Majority's disingenuous 
description of the bill, Ms. Woolsey's amendment does not 
discriminate against Amish employers, it benefits Amish youth. 
Second, Amish youth are the only one's for whom the protections 
of the child labor laws are being waived. If Amish youth are to 
be treated as adults for purposes of the child labor laws, they 
should also be treated as adults for purposes of the minimum 
wage law.
    There are few, if any, employed in the lumber and wood 
products industry today at the minimum wage. For example the 
average hourly earnings for production workers in saw mills and 
planing mills in 1998 was $11.10 an hour, more than twice the 
minimum wage. There are even fewer employed at the sub-minimum 
wage. H.R. 221 expands the pool of eligible workers who may be 
employed at the sub-minimum wage. Further, by expanding that 
pool to children who are not self-supporting, it greatly 
increases the likelihood that the newly eligible workers will 
be willing to work for minimum or sub-minimum wages. This fact 
is not lost on the Amish, themselves, as was made clear in a 
National Public Radio report on May 30, 1998:

          NPR Reporter: But some Amish, like this eighteen-
        year-old who works in his father's wood shop making 
        gazebos, admit that there are far less spiritual 
        reasons for taking on the Labor Department.
          Unidentified Eighteen-Year-Old: There needs to be 
        cut--cuts in the pricing somewhere and the children 
        really help to do the family way of doing things.
          NPR Reporter: You can be more competitive if you have 
        kids helping out in the shops?
          Eighteen-Year-Old: To an extent, that's the main 
        point.

    Not only are adult workers likely to be displaced as a 
consequence of enactment of H.R. 221, but the likely 
willingness of minors to work for lower wages than adults would 
otherwise accept is likely to suppress the wages adult workers 
will receive. In our view, displacing adult workers with minors 
is bad policy.

                         constitutional issues

    The First Amendment provides that ``Congress shall make no 
law respecting and establishment of religion.''
    The Supreme Court has developed two clear and well known 
tests to determine whether a statute may violate the 
establishment clause. The first, initially enunciated in Lemon 
v. Kurtzman, 403 U.S. 602 (1971), establishes a three pronged 
approach to the issue. To survive an establishment clause 
challenge, the law must: ``(1) reflect a clear secular purpose; 
(2) have a primary effect that neither advances nor inhibits 
religion; and (3) avoid excessive government entanglement with 
religion.'' \5\ The test established in Lemon was subsequently 
limited by Larson v. Valente, 456 U.S. 228 (1982) which 
established a more stringent test: ``[W]hen we are presented 
with a state law granting a denominational preference, our 
precedents demand that we treat the law as suspect and that we 
apply strict scrutiny in adjudging its constitutionality.'' 
(456 U.S. 246). Under Larson, a law granting a denominational 
preference must be ``closely fitted'' to the furtherance of a 
``compelling government interest.'' (456 U.S. 255).
---------------------------------------------------------------------------
    \5\ Lee v. Weisman, 505 U.S. 577, 585 (1992) (applying Lemon).
---------------------------------------------------------------------------
    Advancing the employment opportunities of minors and adults 
of a specific religious persuasion does not obviously embody 
``a clear secular purpose.'' \6\ H.R. 221 also requires the 
Department of Labor to make the determination that a particular 
group ``has established teachings that do not permit formal 
education beyond eighth grade'' and to then make a 
determination as to whether an employee, be it a minor or the 
minor's supervisor, is a bona fide member of that religious 
group. In effect, in order to administer this legislation, the 
Department of Labor must inquire of all workers regarding their 
religious affiliation, if any. This appears to invite 
``excessive government entanglement with religion.''
---------------------------------------------------------------------------
    \6\ A religious exemption would only meet the ``clear secular 
purpose'' if it has the purpose and effect of alleviating significant 
governmental interference with a religious organization's ability to 
``define and carry out its religious mission.'' Corporation of the 
Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. 
Amos, 483 U.S. 327, 335, 339 (1987). See page 2, U.S. Department of 
Justice letter attached, which finds that there is insufficient support 
basis for determining H.R. 221 significantly interferes with the 
ability of the Amish to ``define and carry out their religious 
missions.''
---------------------------------------------------------------------------
    Leaving aside those issues, however, it appears obvious 
that, by affording employment opportunities to adults and 
minors whose religious tenets prohibit formal education beyond 
the eight grade, while denying similar opportunities to all 
others, H.R. 221 has a primary effect of advancing one set of 
religious beliefs while inhibiting the religious beliefs of 
others.
    The Majority cite Church of Jesus Christ of Latter-Day 
Saints v. Amos (483 U.S. 327 (1987)) for the contention that 
H.R. 221 is permissible within the establishment clause. As the 
majority states, Amos involved a challenge to the exemption for 
religious organizations from Title VII's prohibition on 
discrimination on the basis of religion. We strongly concur in 
the views expressed by the Department of Justice (attached at 
the end of these views) that H.R. 221 does not appear to 
satisfy the test for permissible accommodations that would 
permit it to be sustained in accordance with the test 
established under Lemon. However, as Amos makes clear, Larson, 
not Lemon, is the applicable test to H.R. 221. Whereas Title 
VII's religious exemption, at issue in Amos, applies to all 
religions, the religious exemption created by H.R. 221 applies 
only to ``a religious sect or division thereof whose 
established teachings do not permit formal education beyond the 
eight grade.'' As the Court stated in Amos:

        * * * Larson indicates that laws discriminating among 
        religions are subject to strict scrutiny, and that laws 
        ``affording a uniform benefit to all religions'' should 
        be analyzed under Lemon.\7\
---------------------------------------------------------------------------
    \7\ Church of Jesus Christ Latter-Day Saints v. Amos, 483 U.S. 327, 
338 (1987) (emphasis in the original).

    If H.R. 221 is difficult to justify under the more lenient 
test imposed by the Lemon decision, it is even more difficult 
to justify under the stricter Larson test. The only compelling 
interest that is identifiable basis of the legislative language 
is to promote the employment of certain youth ``inside and 
outside of places of business where machinery is used to 
process wood products.''
    The Majority contends in this report that H.R. 221 is 
essential if the Amish belief in ``learning by doing'' is to be 
preserved. In fact, however, Amish are employed in a wide range 
of occupations. They work in construction, in machine shops, in 
retail stores, and in offices in addition to working on farms 
and in saw mills and woodworking shops. If, in fact, the child 
labor laws have become an impingement on the Amish belief in 
``learning by doing'' as Amish youth begin to take up new kinds 
of employment, why are the child labor restrictions only lifted 
as they apply to businesses where machinery is used to process 
wood products?
    Nor can it be said that H.R. 221 has been ``closely 
fitted'' to this compelling government interest. Historically, 
Amish youth have been employed on a full-time basis from the 
age of 14 on the family farm. However, farming opportunities 
have not kept pace with the growth in population and as a 
consequence Amish must increasingly find other forms of 
employment. No evidence has been presented to the Committee 
that the new jobs can only or must be exclusively found in 
businesses where machinery is used to process wood products. 
Indeed, the fact that power machinery is used at all represents 
a compromise of traditional Amish beliefs. Rather, the core 
value that would seem to be at stake is ability of the Amish to 
employ their youth in a ``community separate and apart from the 
world and world influence.'' The question to be asked with 
regard to H.R. 221 is whether it is closely fitted to further 
this end. The answer is that it is not.
    H.R. 221 permits an Amish youth to be employed in any 
business where machinery is used to process wood so long as the 
youth is supervised by an adult relative or another adult 
member of the same religious sect or division. A business of 
5,000 people, none of whom are Amish, would be able to employ 
Amish youth so long as it also employed one additional person 
of the same religious sect to supervise the youth. In short, 
H.R. 221 is not closely tailored to provide a limited exception 
for Amish family businesses. Rather, it seems intentionally 
designed to promote the employment opportunities of those of 
one religious belief over those who hold different beliefs.
    If the compelling interest that H.R. 221 is suppose to 
serve is not readily identifiable and if H.R. 221 is not 
closely fitted to that interest, it is no surprise. No hearings 
were held on H.R. 221. Only a single hearing has been held on 
this legislation and that in the last Congress. The only 
witnesses at that hearing were the sponsor of the legislation, 
the Chairman of the Old Order Amish Steering Committee, and an 
Amish sawmill owner. No constitutional scholars presented 
testimony before the committee and virtually no testimony was 
received concerning the constitutional problems provoked by 
this legislation. In a report that was circulated but never 
filed to accompany the predecessor to H.R. 221, H.R. 4257, the 
Majority stated:

          The letter from the Deputy Secretary of Labor also 
        conveyed, without elaboration, ``that the Department of 
        Justice has serious concerns about the 
        constitutionality of the proposed legislation as 
        drafted.'' Neither the Department of Justice nor anyone 
        else has previously raised this objection.

    The Majority has, of course, failed to provide the 
Department of Justice, or anyone else, with an opportunity to 
raise this objection. When it was learned that H.R. 221 was 
being scheduled for markup in the Committee, Mr. Owens, the 
ranking Democrat on the subcommittee on workforce protections, 
wrote the Chairman ``to urge that a hearing be held in order 
that the Committee may consider the constitutional implications 
of H.R. 221 before the bill is marked-up.'' Regrettably, the 
Majority chose not to act upon Mr. Owens' request and, as a 
consequence, whether H.R. 221 furthers a compelling interest 
and whether it is closely fitted to that interest have never 
been seriously considered by the Committee.
    There are, of course, two other obviously compelling 
interests also at stake: protecting the health and safety of 
minors and protecting adults from unfair competition from child 
labor. If the Majority is of the view that supervision by 
specific adults, the use of personal protective equipment, the 
prohibition against operating machinery, and the requirement 
that there be a barrier or adequate distance to protect minors 
from flying debris are fully sufficient to protect the health 
and safety of minors, then there is no basis for restricting 
this legislation to only those who are members of certain 
religious sects. The factthat H.R. 221 only permits those of a 
certain religion to be employed in such hazardous settings as saw mills 
raises obvious constitutional problems.
    Issues similar to those raised by H.R. 221 were raised in 
Brock v. Wendell's Woodwork Inc. (867 F.2d 196 (1989)). In that 
case, members of the Shiloh True Light Church of Christ 
provided home schooling for their children for one-half of a 
day and the children, some as young as nine and ten, were 
enrolled in ``apprenticeship programs'' for the other half. The 
apprenticeship programs included work at a woodworking 
enterprise and a large masonry contractor. The Secretary of 
Labor brought an action for violation of the child labor laws. 
The church members claimed an exemption from those laws under 
the free exercise clause of the First Amendment. The court 
found:

          * * * [T]hat the members of the True Light Church are 
        sincerely convinced that they are rearing their 
        children in a manner dictated by their religious 
        beliefs. They sincerely believe that vocational 
        training has spiritual as well as secular worth. There 
        is nothing in the federal statutes, however, that 
        prevents church members from arranging for some 
        instruction of their children in vocational pursuits.
          When the means adopted to serve that end consist of 
        employing children in commercial enterprises that 
        compete with other employers fully subject to the labor 
        laws, however, the religious beliefs of the church 
        members cannot immunize the employers from enforcement 
        of the federal statutes * * *
          * * * [W]e may not ignore the interest of competing 
        employers who comply with the relevant labor laws and 
        feel the need to be free from competition with 
        employers who do not comply.
          It is no answer to this concern that the church 
        members now concede that minimum wages should have been 
        paid to the children. There is nothing to indicate that 
        competing employers employ experienced adults at 
        minimum entry level wages.
          In short, the interest of the United States in the 
        even-handed application and enforcement of its labor 
        laws must prevail over the interest of church members 
        who attempt to transport a vocational training program 
        into industrial and commercial environments where 
        children, save for their ages, are indistinguishable 
        from other employees.\8\
---------------------------------------------------------------------------
    \8\ Brock v. Wendell's Woodwork, Inc., 867 F.2d 196, 198-9.

    In a case involving the Amish, Wisconsin v. Yoder, 406 U.S. 
205 (1972), the U.S. Supreme Court found that Wisconsin could 
not impose liability on Amish parents for failure to comply 
with the State's compulsory school attendance law. The Court 
held, ``that secondary schooling, by exposing Amish children to 
worldly influences in terms of attitudes, goals, and values 
contrary to beliefs, and by substantially interfering with the 
religious development of the Amish child and his integration 
into the way of life of the Amish faith community at the 
crucial adolescent stage of development, contravenes the basic 
religious tenets and practice of the Amish faith * * *''. (406 
U.S. 218). The Court further concluded, ``that accommodating 
the religious objections of the Amish by forgoing one, or at 
most two, additional years of compulsory education will not 
impair the physical or mental health of the child, or result in 
an inability to be self-supporting or to discharge the duties 
and responsibilities of citizenship, or in any other way 
materially detract from the welfare of society.'' (406 U.S. 233 
(emphasis added)). Therefore, the State's interest in its 
system of compulsory education was not sufficiently compelling 
to be sustained in the face of the challenge that it violated 
the free exercise clause of the First Amendment.
    In determining that the State's interest was not 
sufficiently compelling, the Court noted that compulsory 
education laws reflect ``the movement to prohibit most child 
labor under age 16 that culminated in the provisions of the 
Fair Labor Standards Act of 1938. * * * [T]he 16-year education 
limit reflects, in substantial measure, the concern that 
children under that age not be employed under conditions 
hazardous to their health, or in work that should be performed 
by adults.'' (406 U.S. 228). The Court went on to note that the 
case before it ``is not one in which any harm to the physical 
or mental health of the child or to the public safety, peace, 
order, or welfare has been demonstrated or may be properly 
inferred.'' Unlike Wisconsin's compulsory education law, 
however, one of the principal issues raised by H.R. 221 is the 
health and safety of minors. A decision that the Majority 
selectively cites to buttress H.R. 221, Wisconsin v. Yoder 
serves only to further call into question the constitutionality 
of the legislation.
    We believe that the significant threat to the safety of 
Amish minors raised by the Department of Labor, and the serious 
constitutional issues created by H.R. 221, require us to oppose 
this dangerous exemption to our country's most critical child 
protection law.

                             Department of Justice,
                             Office of Legislative Affairs,
                                  Washington, DC, February 9, 1999.
Hon. William F. Goodling,
Chairman, Committee on Education and the Workforce, House of 
        Representatives, Washington, DC.
    Dear Mr. Chairman: This letter sets forth the views of the 
Department of Justice on H.R. 221, a bill to amend the Fair 
Labor Standards Act of 1938 (``FLSA'') to permit certain minors 
to perform certain work with wood products. Our views 
necessarily are preliminary, because of several factual 
questions (discussed below) as to which we do not have 
sufficient information. Based on the information available to 
us at this time, however, H.R. 221 as drafted would, at the 
very least, raise serious concerns under the Establishment 
Clause of the First Amendment to the Constitution.
    H.R. 221 would amend the FLSA's provisions on child labor 
to permit the employment of certain minors ``inside or outside 
places of business where machinery is used to process wood 
products.'' H.R. 221, Sec. 1 (proposing 29 U.S.C. 
Sec. 213(c)(6)(A)). The FLSA prohibits minors under 16 years of 
age from working in manufacturing, including sawmill 
operations. See 29 U.S.C. Sec. 212(a) (prohibiting shipment and 
delivery of goods produced in establishment employing ``any 
oppressive child labor practice''); id Sec. 203 (defining 
``oppressive child labor''). In addition, as permitted by the 
FLSA, see id., the Secretary of Labor has by order designated 
occupations in logging and sawmill operations as ``hazardous 
occupations'' and has prohibited the employment of persons 
under 18 years of age in such operations. 29 C.F.R. Sec. 570.54 
(Hazardous Occupations Order No. 4). H.R. 221 provides that it 
shall not be considered an oppressive child labor practice to 
employ in a sawmill operation an individual who is between the 
ages of 14 and 18 and who ``is a member of a religious sect or 
division thereof whose established teachings do not permit 
formal education beyond the eighth grade.''
    It is a ``principle at the heart of the Establishment 
Clause'' that the government ``should not prefer * * * religion 
to irreligion.'' Board of Educ. of Kiryas Joel Village School 
Dist. v. Grumet, 512 U.S. 687, 703 (1994); see also Wisconsin 
v. Yoder, 406 U.S. 205, 220-21 (1972) (noting that ``an 
exception from a general obligation of citizenship on religious 
grounds may run afoul of the Establishment Clause''). Thus, as 
a general rule the government may not exempt religious 
adherents from obligations by which nonadherents must abide; 
instead, exemptions from otherwise generally applicable 
prohibitions must be drawn on a religion-neutral basis in order 
to pass muster under the Establishment Clause. See, e.g., Texas 
Monthly, Inc. v. Bullock, 489 U.S. 1 (1989); Kiryas Joel, 512 
U.S. at 703-05.\1\
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    \1\ In Texas Monthly, for example, the Court invalidated a sales-
tax exemption provided exclusively to religious periodicals. The 
plurality reasoned that ``when government directs a subsidy exclusively 
to religious organizations that is not required by the Free Exercise 
Clause and that either burdens nonbeneficiaries markedly or cannot 
reasonably be seen as removing a significant state-imposed deterrent to 
the free exercise of religion, * * * it `provide[s] unjustifiable 
awards of assistance to religious organizations' and cannot but 
`conve[y] a message of endorsement' to slighted members of the 
community.'' 489 U.S. at 15 (quoting Corporation of Presiding Bishop of 
Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 348 
(1987) (O'Connor, J., concurring in the judgment)). A government may, 
of course, provide such benefits to religious adherents when such 
persons are included in a broader class of similarly situated 
beneficiaries, defined in secular terms and reflecting some legitimate 
secular aim. See Texas Monthly, 489 U.S. at 15-17 (plurality opinion) 
(scope of beneficiary class must reflect legitimate ``secular aim,'' 
and not have the ``purpose or effect of sponsoring certain religious 
tenets or religious belief in general'').
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    The exemption in H.R. 221 would permit children in certain 
religious sects or divisions to be employed in places of 
business where other children may not be employed. This 
preference for religion over ``irreligion'' would violate the 
Establishment Clause, unless it could be defended as a 
permissible accommodation of religious exercise. A statutory 
exception exclusively for religion may be a permissible 
accommodation where, inter alia, the exception has the purpose 
and effect of ``alleviat[ing] significant governmental 
interference with the ability of religious organizations to 
define and carry out their religious missions,'' Corporation of 
the Presiding Bishop of the Church of Jesus Christ of Latter-
Day Saints v. Amos, 483 U.S. 327, 335, 339 (1987), or of 
otherwise removing ``a significant state-imposed deterrent to 
the free exercise of religion,'' Texas Monthly, 489 U.S. at 15 
(plurality opinion); see also Kiryas Joel, 512 U.S. at 705 
(noting that ``the Constitution allows the State to accommodate 
religious needs by alleviating special burdens'' on religious 
belief and practice) (emphasis added).
    It is not apparent, based on the limited facts of which we 
are aware, how H.R. 221 would satisfy this part of the test for 
permissible accommodations. As we understand it, the Amish 
religion forbids or strongly discourages formal education 
beyond the eighth grade. Accordingly, the Supreme Court has 
held that states must, in certain circumstances, permit Amish 
children to be excused from compulsory educationalrequirements 
for older teenagers, Wisconsin v. Yoder, supra. This accommodation, as 
we understand it, alleviates what otherwise would be a governmentally 
imposed burden on the exercise of the Amish religion. We are not aware 
of any congressional finding or understanding that the Amish religion 
also requires or strongly encourages its minors to work in sawmills. It 
may be that the Amish religion encourages or requires that children 
work alongside other members of the community, in order to instill in 
the children certain work ethics and values of self-reliance that are 
an important part of an Amish education.\2\ And it also may be the case 
that many adults in Amish communities work in sawmills. But, unless it 
is the case that the FLSA prohibition on employing children in sawmills 
significantly burdens the religious exercise of those within the 
community, or significantly interferes with the ability of the Amish 
``to define and carry out their religious missions,'' Amos, 483 U.S. at 
335--as opposed to simply imposing an economic burden on the Amish 
community--the exemption would not appear to satisfy the requirement of 
the accommodation doctrine that the preference for religion alleviate a 
significant government-imposed burden on religious mission or exercise. 
Federal law does not, of course, wholly prevent the Amish from 
instructing their children in vocational pursuits--it merely prohibits 
children from working in a discrete number of dangerous environments. 
Whether this imposes a burden on religion, and if so, whether and under 
what circumstances that burden is ``significant'' or ``special,'' will 
depend upon factual circumstances that we are in no position to 
evaluate.
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    \2\ See Brock v. Wendell's Woodwork, Inc., 867 F.2d 196, 198 (4th 
Cir. 1989) (describing another religious sect that ``sincerely 
believe[s] that vocational training [by members of the sect] has 
spiritual as well as secular worth'').
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    Moreover, assuming that the FLSA child-labor prohibition 
does impose a significant burden on religious exercise in some 
cases, any statutory exemption should be crafted in a manner 
that is directly related to the alleviation of that burden. As 
presently drafted, a necessary condition for invoking the 
exemption from the FLSA in H.R. 221 would be a minor's 
connection to a religious sect or division with certain 
prohibitions on formal education; the exemption therefore would 
not be tailored to the question whether or not the FLSA's child 
labor prohibitions would, in any particular case, impose a 
burden on religious exercise, or on the community's religious 
mission, where a minor already has been exempted from certain 
of a state's compulsory education requirements.
    Because we lack sufficient information, we are unable to 
conclude with any certainty whether the child labor laws 
relating to sawmills significantly burden Amish religious 
exercise.\3\ Even if such laws do impose such a significant 
burden, however, H.R. 221 would raise two other potential 
Establishment Clause problems. First, the exemption would be 
triggered, not by an individual's religious belief or exercise, 
but instead, by an individual's membership in a certain 
religious sect or division. The Establishment Clause prohibits 
the government--except upon an extraordinary showing--from 
favoring certain religious sects, or favoring religious belief 
that comports with that of established religious sects. See 
Larson v. Valente, 456 U.S. 228 (1982); Kiryas Joel, 512 U.S. 
at 706-07 (``whatever the limits of permissible legislative 
accommodations may be, * * * it is clear that neutrality as 
among religions must be honored''); See also Frazee v. Illinois 
Department of Employment Security, 489 U.S. 829, 834 (1989) 
(``Undoubtedly, membership in an organized religious 
denomination, especially one with a specific tenet forbidding 
members to work on Sunday, would simplify the problem of 
identifying sincerely held religious beliefs, but we reject the 
notion that to claim the protection of the Free Exercise 
Clause, one must be responding to the commands of a particular 
religious organization.''). It may be that all or most of the 
minors who would satisfy the proposed exemption do belong to 
particular religious sects or divisions. But the Constitution 
does not permit the government to make such affiliation a 
condition of receiving preferential treatment. The exemption, 
if it is to pass constitutional muster, must at the very least 
be extended to cover other persons who can make a sincere claim 
that their religious exercise is significantly burdened by the 
child labor law at issue but who do not belong to designated or 
defined religious sects or divisions. See e.g., Wilson v. NLRB, 
920 F.2d 1282 (9th Cir. 1990), cert denied, 505 U.S. 1218 
(1992); Davis v. State, 451 A.2d 107, 112-14 (Md. 1982); Dalli 
v. Board of Educ., 267 N.E. 2d 219, 223 (Mass. 1971). Moreover, 
insofar as the exemption is designed to relieve a burden on 
individuals' religious exercise, there would not appear to any 
grounds for extending the exemption to cover members of defined 
sects or divisions who do not sincerely believe the relevant 
tenets of those sects or divisions.
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    \3\ Of course, if a minor or a religious community were able to 
demonstrate that the child labor provisions of the FLSA imposed a 
substantial burden on religious exercise, then the Religious Freedom 
Restoration Act (``RFRA'') would require the government to grant an 
exemption or otherwise alleviate such burden, unless the government 
could demonstrate that imposition of the burden is in furtherance of a 
compelling governmental interest and is the least restrictive means of 
furthering that compelling governmental interest. 42 U.S.C. 
Sec. 2000bb-1. See also id. Sec. 2000bb-2(1) (RFRA applies to any 
``branch, department, agency, instrumentality, and official (or other 
person acting under color of law) of the United States''); id. 
Sec. 2000bb-3(a) (RFRA ``applies to all Federal * * * law, and the 
implementation of that law, whether statutory or otherwise''); In re 
Young 141 F.3d 854, 857-63 (8th Cir.) (RFRA constitutional as applied 
to the federal government and to federal law), cert, denied sub nom. 
Christians v. Crystal Evangelical Free Church, 119 S. Ct. 43 (1998). 
Cf. Wendell's Woodwork, 867 F.2d at 198-99 (applying analogous test 
where challenge to child labor laws was brought under the Free Exercise 
Clause); Reich v. Shiloh True Light Church of Christ 85 F.3d 616 
(mem.), 1996 WL 228802, at *3 (4th Cir. 1996) (same).
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    Second, even if the exemption would lift a significant (or 
``special,'' Kiryas Joel, 512 U.S. at 705) government-imposed 
burden on religion, nevertheless the exemptionmight raise 
serious, independent constitutional concerns were it to result in any 
significant threat of harm to the health of minors. The Court has 
reasoned that a religious accommodation may be constitutionally 
problematic if it ``burdens nonbeneficiaries markedly.'' Texas Monthly, 
489 U.S. at 15 (plurality opinion); see also Estate of Thornton v. 
Caldor, Inc., 472 U.S. 703, 709-10 (1985) (invalidating religious 
preference that did not lift government-imposed burden and that imposed 
``significant'' and ``substantial'' burdens on nonbeneficiaries). We do 
not have sufficient information to determine whether the sponsors 
intend that the ``beneficiaries'' of the exemption include the exempted 
minors themselves. However, at least insofar as Congress's principal 
intent is to alleviate a significant burden on the Amish religious 
communities' ability to ``define and carry out their religious 
missions,'' Amos, 483 U.S. at 335--rather than to alleviate a 
significant burden on the religious exercise of Amish minors, as such--
then the constitutional analysis may well be affected by any resulting 
threat of harm to the health of the exempted minors.\4\
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    \4\ For related discussion in the context of Free Exercise claims, 
see Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (``The right 
to practice religion freely does not include liberty to expose * * * 
the child * * * to ill health or death.''); id. at 170-71 (rejecting 
Free Exercise challenge to child labor law restriction); Yoder, 406 
U.S. at 230 (emphasizing in the Free Exercise context that ``[t]his 
case, of course, is not one in which any harm to the physical or mental 
health of the child or to the public safety, peace, order, or welfare 
has been demonstrated or may be properly inferred''); id. at 234 
(reemphasizing that ``[t]he record strongly indicates that 
accommodating the religious objections of the Amish by forgoing one, or 
at most two, additional years of compulsory education will not impair 
the physical or mental health of the child'') id. at 233-34 (``To be 
sure, the power of a parent, even when linked to a free exercise claim, 
may be subject to limitation under Prince if it appears that parental 
decisions will jeopardize the health or safety of the child''). See 
also Wendell's Woodwork, 867 F.2d at 199 (in addition to the interest 
in protecting children's health, ``we may not ignore the interest of 
competing employers who comply with the relevant labor laws and feel 
the need to be free from competition with employers who do not 
comply'').
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    Finally, we should note one additional concern that the 
proposal would raise, even if the basic exemption were a 
permissible accommodation. The proposal would permit an 
exemption for child labor in sawmill operations only where, 
inter alia, ``the individual is supervised by an adult relative 
of the individual or is supervised by an adult member of the 
same religious sect or division as the individual.'' Proposed 
Sec. 213(c)(6)(B)(i). This would, in essence, require sawmill 
operations to hire, as supervisors of the excepted minors, 
``member[s] of the same religious sect or division as the 
[minors].'' The Religion Clauses of the First Amendment 
prohibit the government from requiring such sect-based 
discrimination, and, more generally, from establishing 
religious tests as a condition of employment. See Larson; 
McDaniel v. Paty, 435 U.S. 618 (1978); Torcaso v. Watkins, 367 
U.S. 488, 492-93 (1961).\5\
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    \5\ See also, e.g., County of Allegheny v. ACLU Greater Pittsburgh 
Chapter, 492 U.S. 573, 591 (1989) (quoting Everson v. Board of Educ., 
330 U.S. 1, 15-16 (1947)) (``Neither a state nor the Federal Government 
may * * * pass laws which aid one religion, aid all religions, or 
prefer one religion over another. Neither can force nor influence a 
person to go to or to remain away from church against his will or force 
him to profess a belief or disbelief in any religion. No person can be 
punished for entertaining or professing religious beliefs or 
disbeliefs, for church attendance or non-attendance.''); Employment 
Division v. Smith, 494 U.S. 872, 877 (1990) (the government ``may not 
compel affirmation of religious belief, punish the expression of 
religious doctrines it believes to be false, impose special 
disabilities on the basis of religious views or religious status or 
lend its power to one or the other side in controversies over religious 
authority or dogma'').
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    Thank you for the opportunity to present our views on this 
matter. If we may be of additional assistance, we trust that 
you will not hesitate to call upon us. We also stand prepared 
to assist the Department of Labor in further discussions on 
these issues. The Office of Management and Budget has advised 
that there is no objection from the standpoint of the 
Administration's program to the presentation of this report.
            Sincerely,
                                           Dennis K. Burke,
                                 Acting Assistant Attorney General.

    cc: The Honorable William Clay, Ranking Minority Member.

                                   William L. Clay.
                                   Dale E. Kildee.
                                   Major R. Owens.
                                   Patsy T. Mink.
                                   Lynn Woolsey.
                                   Carolyn McCarthy.
                                   Harold E. Ford, Jr.
                                   David Wu.
                                   George Miller.
                                   Donald M. Payne.
                                   Robert E. Andrews.
                                   Bobby Scott.
                                   Carlos Romero-Barcelo.
                                   Ruben Hinojosa.
                                   John F. Tierney.
                                   Loretta Sanchez.
                                   Dennis J. Kucinich.
                                   Rush Holt.