Information Bulletin #6 - Labor Standards Act changes HR 2732 - SB1562 11/08/2003



Did you know that :


The reason for any "labor law" regarding children under 18 is to protect them from working at the expense of obtaining an education. This law is directly related to education, a power not enumerated in the Constitution as a federal power, but a power left to the States and the people. With this proposed legislation, Congress is declaring that it has the power to regulate the hours and periods of time when a homeschooled child may be employed. State laws already exist regulating the hours and periods of time when public and private school children may work. If any law needs to be amended, it would be a state law, not a federal law.


States may "cite the federal law" but that does not mean that the states, themselves, do not have the authority to correct a problem, if one exists. We may also consider that the problem may be more of implementation by uninformed administrators than a problem with the law itself. For example, any lawyer would be able to make a credible argument to an administrator or an employer that while teen employment may be prohibited "during school hours", the underlying purpose of the law must be considered. Obviously, the underlying purpose of the law is to avoid truancy. Again, under a correct interpretation of the truancy laws, truancy only applies to children who are "enrolled in a public or private school" and who have unexcused absences. Because truancy does not apply to homeschoolers, the underlying purpose regarding homeschoolers is inapplicable. Furthermore, the legislature in those states, it can be argued, must not have intended to apply such a law to homeschoolers, otherwise the legislature would not have allowed parents to instruct their children at home when that instruction could take place at other than "school hours", leaving those children available to seek employment during "school hours."

At the very least, these arguments can be made to state legislators to clarify state law consistent with the principles in the Tenth Amendment, rather than enabling the federal government to intrude on the rights of parents.


This is the text of the proposed legislation:


Subsection (l) of section 3 of the Fair Labor Standards Act (29 U.S.C. 203) is amended by adding at the end the following: ''The Secretary shall extend the hours and periods of permissible employment applicable to employees between the ages of fourteen and sixteen years who are privately educated at a home school (whether the home school is treated as a home school or a private school under State law) beyond such hours and periods applicable to employees between the ages of fourteen and sixteen years who are educated in traditional public schools..''"


As you can see, this wording introduces the term home school into federal legislation. States that do not define home school in their statutes would have to define it in order to enact this legislation. Definition may lead to regulation in those states where there currently is none. If there is a problem with homeschoolers not being able to be employed "during school hours" then it should be addressed at a state level not a federal one.


Another point to consider is whether or not it really is worth risking our homeschool freedoms by enacting federal legislation in order to have our children work for minimum wage during the school day.



Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense. or email :

Judy Aron - Director of Research, NHELD