“Mammas Don’t Let Your Babies Grow Up to Be Loggers”: Child Labor Law Violations and Workers’ Compensation Tort Immunity

by Bradley Guin, Managing Editor

Introduction

Fifteen-year-old Mark Reese Franklin did not know that May 13, 1975 would be his last day alive.[1] Instead, he was preoccupied with filling his older brother’s shoes. On that day, an employee of H & H Pulpwood, Donald Holm, stopped at the Franklin household to recruit Mark’s older brother to accompany him in the woods and assist him in hauling pulpwood.[2] But the older brother was unavailable, and Donald accepted Mark in his brother’s place.[3] Donald and Mark embarked into the woods and began the arduous job of cutting and loading wood.[4] They were assisted by a “Pack-a-Back,” a machine-powered vehicle used to carry pulpwood from the forest to the road where the loading truck was located.[5] As Donald was driving the Pack-a-Back, the machine collided with an electric line.[6] He stopped the machine and turned to warn Mark of the danger of boarding the Pack-a-Back,[7] but it was too late. Mark did not hear the warning, attempted to get on the machine, and was immediately electrocuted and killed.[8]

Mark’s parents brought a wrongful death suit: Franklin v. Haughton Timber Co.[9] The parents alleged that H & H Pulpwood, as Donald Holm’s employer, was vicariously liable for Donald’s negligence;[10] it was a classic respondeat superior suit.[11] The appellate court, however, barred the suit on the premise that Mark was actually Donald’s employee, and, therefore, the Workers’ Compensation Act immunized Donald—and therefore H & H Pulpwood—from tort liability.[12] In other words, workers’ compensation eliminated the tort remedy embodied in Louisiana Civil Code article 2315,[13] the fountainhead of Louisiana tort law.[14] The court ultimately threw out the suit.[15]

Haughton Timber reflects a disturbing elevation of the public policy behind Louisiana’s workers’ compensation scheme over that of Louisiana’s Child Labor Law.[16] Conspicuously absent from the court’s analysis in Haughton Timber is any acknowledgement that Donald Holm, in “employing” 15-year-old Mark Franklin, violated Louisiana Revised Statutes § 23:163, a provision of the Child Labor Law, which prohibits the employment of a minor under the age of 16 to work in connection with power-driven machinery[17]—the deadly lumber-hauling vehicle. Indeed, Haughton Timber is an implicit declaration that employers may violate the Child Labor Law without losing their tort immunity under workers’ compensation.[18] This result ignores the weightier public policy concerns implicated by the Child Labor Law, and encourages violations thereof. Moreover, injured children—when restricted to the confines of workers’ compensation—are often left with grossly inadequate compensation.[19]

To cure this problem, and to resolve the current circuit split on the issue, the Louisiana Legislature should sanction employers that violate the Child Labor Law by providing more routes to recovery for illegally employed minors—either by stripping employers of their workers’ compensation tort immunity or by providing enhanced recovery. But until such a legislative fix comes, Louisiana courts should permit minors hired in violation of the Child Labor Law to elect recovery either under workers’ compensation or in tort. Such an approach, which the Louisiana Second and Third Circuit Courts of Appeal have adopted,[20] correctly prioritizes the public policy of the Child Labor Law over that of workers’ compensation. Moreover, this result avoids the “anomaly” of rewarding an employer who engages illegal child labor with tort immunity,[21] while also providing harmed children with ample sources of recovery.

I. A Tale of Two Labor Reforms: Child Labor Regulation and Workers’ Compensation

The rise of industrialization in the 19th century brought about significant change in the United States.[22] The “modern factory system” was ushered into America, and a predominately rural populace was transformed into an urban one.[23] These significant changes, however, were also accompanied by significant costs. As the demand for cheap labor grew, so too did the prevalence of oppressive child labor practices.[24] Further, the number of health and safety hazards faced by the common laborer increased considerably, as did occupational injuries and deaths.[25] In response to these workplace atrocities, two distinct yet intertwined labor reform movements were born: child labor regulation and workers’ compensation.[26]

A.    “The Cry of the Children”: Child Labor in America

“Children have always worked.”[27] Indeed, this reality is deeply ingrained in American history.[28] The agrarian lifestyle common in early America often required boys and girls to help around the farm and with domestic chores.[29] Keeping in line with the Puritan ethic, it was believed that work kept children from idleness and mischief and taught them valuable skills and trades.[30] This work was often grueling, as one historical commentator described:

In the onion marshes of Ohio and the cranberry bogs of Massachusetts and New Jersey, children worked on hands and knees on damp ground, plagued by mosquitos. In cotton, children harvested bolls in sweltering heat from sunup to sundown. In sugar beets, children topped beets (removed foliage) with sharp knives and pulled the heavy beets from the soil by hand. In California picking figs, hops, and raisin grapes was sticky work that drew lots of insects.[31]

The boom of industrialization in the 19th century further exacerbated the child labor problem in America;[32] by 1880, one out of six children under the age of 16 were at work in the United States.[33] Children occupied a variety of roles in factories, mines, textile mills, and farm fields, to name a few.[34] The working conditions were terrible: the hours were long, the work was physically exhausting, and accidents were common.[35] Soon, early reform movements began to take place on a state-by-state basis.[36] In 1836, Massachusetts passed the country’s first child labor law.[37] By the turn of the 20th century, all of the northern industrialized states had laws restricting child labor in mining and manufacturing.[38] The progress regulating child labor in the South was much slower, but several southern states began considering legislative restrictions on child labor as the early 1900s crept forward.[39]

In Louisiana, child labor went virtually unregulated until July 1908, when Jean Gordon,[40] a New Orleans factory inspector, and her supporters succeeded in lobbying the legislature to pass a child labor law, Act 301.[41] The new Louisiana child labor law was hailed “as the ‘best’ one ‘yet enacted by another Southern state.’”[42] The new law, however, was not without controversy. A sore point was the prohibition of child actors, which “proved a major headache for New Orleans theaters.”[43] Eventually, one theater manager lodged a constitutional challenge against the law, but the Louisiana Supreme Court was unswayed. The high court said the regulation and restriction of child labor fell squarely within the state’s police powers.[44] The child labor law was effective in reducing the number of child laborers in Louisiana, too.[45] In 1910, there were almost 60,000 reported children working in Louisiana; by the Roaring Twenties, that number was nearly cut in half to approximately 32,000.[46] Louisianians had certainly heard “‘the cry of the children,’ an expression invoked by reformers of that era.”[47]

B.    A “Radical Departure” from the Norm: Workers’ Compensation

Around the same time progressivism shocked Louisiana into child labor reform, another development was taking hold of America: workers’ compensation.[48] This revolutionary concept caught European nations ablaze, and, finally, the embers were swept to the United States in the early 1910s.[49] A product of socio-political thought in 19th-century Prussia, workers’ compensation was “the expression of an entirely new social principle . . . .”[50] Distilled down to its core, workers’ compensation is “[a] system of providing benefits to an employee for injuries occurring in the scope of employment.”[51] Most workers’ compensation statutes hold the employer strictly liable, and, in turn, bar the employee from suing the employer in tort.[52] Underlying the concept of workers’ compensation is a “presumed bargain” between employers and employees:

[B]usinesses and workers alike forego the potential risks and rewards of the tort system in exchange for the workers’ compensation system. Employees lose their slight chance for a huge award by accepting the smaller but certain benefits of workers’ compensation, but they also protect themselves from the risk of receiving no compensation at all. Concomitantly, employers assume the burden of compensating all injured employees and waive their defenses in the tort law system, but they avoid the risk of liability for catastrophic awards and save substantial litigation expense.[53]

Stated differently, workers’ compensation requires “sacrifices to be made by both the employer and the employee”: in exchange for guaranteed compensation for their workplace injuries, employers are immunized from tort claims.[54]

This “radical departure” from the norm eventually made its way into Louisiana law in 1914—a mere six years after the enactment of the 1908 child labor law—after the submission of a “lengthy report and recommendation” by a commission empaneled by Governor Luther E. Hall.[55] The law was “one of the first workers’ compensation statutes in the South.”[56] Nevertheless, the uniqueness of workers’ compensation was accompanied by caution and skepticism. The commission noted that workers’ compensation in Louisiana was “all in the experimental state,” and recommended “conservatism” in the law’s application.[57]

The description of workers’ compensation “as a compromise in which employers gave up their right to tort damages,” however, is not entirely correct.[58] As the Louisiana Supreme Court recognized in Roberts v. Sewerage and Water Board of New Orleans, “[t]he dominant purpose of the movement to adopt compensation laws in the early decades of this century was not to abrogate existing tort remedies that afforded protection to workers.”[59] Rather, the Court explained, workers’ compensation was intended to provide “social insurance to compensate victims of industrial accidents because it was widely believed that the limited rights of recovery available under the general tort law was inadequate to protect them.”[60] Workers’ compensation was not simply a compromise between employer and employee; indeed, it recognized the shortcomings of the tort system in compensating workers and deterring negligent employers.

II. A Head-On Collision: The Conflict Between the Exclusive Remedy of Workers’ Compensation and the Child Labor Law

Does the exclusive nature of the workers’ compensation remedy override an illegally employed minor’s remedy in tort? Put another way: may an employer who hires a minor in violation of the Child Labor Law enjoy tort immunity? There are two schools of thought in Louisiana jurisprudence that attempt to resolve this issue.[61] The Second and Third Circuit Courts of Appeal answer these questions in the negative.[62] Because an employment contract entered into by a minor is relatively null, as the argument goes, the minor may either rescind or confirm the contract.[63] By filing a lawsuit in tort against an employer, a minor implicitly rescinds the relatively null employment contract, thereby electing a tort remedy over workers’ compensation.[64] The First Circuit has been steadfast in rejecting this approach.[65] The First Circuit takes an expansive view of the Workers’ Compensation Act to cover all employees.[66] Under the First Circuit’s reasoning, the distinction between whether a minor is legally employed versus illegally employed is, therefore, irrelevant.[67] The Fourth Circuit likewise follows this approach.[68] In the First and Fourth Circuits, an illegally employed minor’s remedy lies only in workers’ compensation—tort claims are barred and the exclusive remedy in workers’ compensation controls.[69]

A. The Second and Third Circuit’s Approach: Tort Claims Not Barred

The notion that a minor hired in violation of state child labor laws may recover from a source outside of workers’ compensation is not a radical idea. Indeed, “approximately half the states do not restrict the illegally employed minor to workers’ compensation, but to provide more liberal benefits.”[70] Although some states permit a minor the option to elect either workers’ compensation or tort damages, others penalize employers in the form of increased compensation, ranging from 25% to treble.[71] The Louisiana Second and Third Circuit Courts of Appeal use the former approach—an election of remedies.[72]

In Ewert v. Georgia Casualty and Surety Co., the Third Circuit confronted a “head-on” collision of policy interests between workers’ compensation tort immunity and the Child Labor Law.[73] The facts of the case are eerily reminiscent of Haughton Timber.[74] In Ewert, a 16-year-old minor was hired by a logging company and, unluckily, was injured on the first day of the job when a tree fell on him.[75] This employment ran directly afoul of Louisiana Revised Statutes § 23:161(9), which makes it illegal for a minor to be employed, permitted, or suffered to work in logging operations.[76] The employer was eventually sued in tort.[77] The court began its analysis with a historical exploration of the Louisiana Workers’ Compensation Act.[78] The court noted that, prior to 1948, illegally hired minors were excluded from workers’ compensation coverage.[79] This exclusion had serious implications: “The result was that minors who were grievously injured through their own negligence while employed in hazardous occupations were denied any form of recovery.”[80] Several appellate court decisions decried this result,[81] but ultimately applied the legal maxim of dura lex, sed lex—“[t]he law is harsh, but it is the law.”[82]

The Workers’ Compensation Act was eventually amended to delete the exclusion of coverage of illegally employed minors.[83] The Ewert court continued its discussion by examining the distinction, if any, between a minor who is illegally employed versus a minor who is legally employed but who performs an illegal task on the job.[84] This tangential discussion was prompted by the Louisiana Supreme Court’s decision in Mott v. River Parish Maintenance, Inc.,[85] a case that has been seized by both sides of the child labor violation-workers’ compensation debate.[86] In Mott, the minor was legally hired by River Parish Maintenance, Inc., but was injured while performing tasks prohibited by the Child Labor Law.[87] In concluding that the minor was blocked from suing in tort due to the exclusive remedy of workers’ compensation, the Louisiana Supreme Court “stopped short of holding that its views would apply where the hiring itself is in violation of” the Child Labor Law:[88]

A question has been raised as to whether there is a distinction between the case where the minor is hired in violation of law or where, as here, he is legally hired but required to perform a task in violation of law. While there may be some support for such a distinction, we are not here faced with that issue and express no view on it.[89]

Thus, the issue before the Third Circuit was res nova.[90] The Ewert court found that such a distinction did exist and concluded that the risks associated with an employment that is illegal ab initio are significantly different than the “incidental risk of assignment to an illegal task.”[91]

The more difficult question for the Third Circuit to answer, however, was whether this distinction warranted “a policy decision to withhold tort immunity in the case of illegal employment.”[92] The court was quick to answer in the affirmative,[93] relying on several sources of authorities to reach this conclusion. First, the court cited the two dissenting opinions in Mott. Justice Harry Lemmon’s dissent relied on an estoppel theory to hold that an employer who requires a minor to perform tasks prohibited by the Child Labor Law—or other similar laws expressing strong public policy—is estopped from raising the exclusivity of the workers’ compensation remedy as a defense.[94] Justice James Dennis’s dissent was much more direct, and accused the majority of “drain[ing] the Child Labor Law of much of its vitality.”[95] Under Justice Dennis’s approach, the illegal employment of a minor should not be considered as “employment” for tort liability purposes.[96] Moreover, Justice Dennis argued that the majority cannot rely on legislative silence for the proposition that legislature intended employers who illegally hire minors to be insulated from tort liability.[97] Both Justice Lemmon’s and Justice Dennis’s dissents also relied on Boyer v. Johnson, a 1978 Louisiana Supreme Court decision, and its holding that the Child Labor Law is a basis for civil liability in tort.[98]

This was not Justice Dennis’s first proclamation on this issue; he wrote a dissent from a writ of certiorari denial in Haughton Timber, the case discussed in the Introduction.[99] In his brief, two-sentence dissent, Justice Dennis argued that a minor’s “cause of action is independent of any right granted or preempted by the workmen’s compensation act because the ‘act’ which caused the damage was the unlawful hiring of the minor . . . .”[100] Thus, because the act giving rise to the minor’s damage occurred before the formal inception of the employment relationship, a minor could validly sue his employer, notwithstanding the exclusivity of workers’ compensation.[101]

Beyond Justice Lemmon’s and Justice Dennis’s dissents, the Ewert court also looked to the national scene and how other states handle this problem.[102] The court found that about half of the states do not restrict illegally employed minors to workers’ compensation.[103] Rather, they are provided more liberal benefits: some states assess a penalty against the employer, but other states allow minors the option to recover either workers’ compensation payments or tort damages.[104] Most impactful, however, was the court’s discussion of the competing policy interests behind both the Child Labor Law and workers’ compensation. The “primary legislative purpose of the Child Labor Law is to protect minors in employment relationships from excessive risk of personal injury.”[105] The legislature’s prohibition of minors engaging in certain types of employment furthers this purpose.[106] And so, “[b]y holding that the illegal contract is relatively null,” illegally employed minors are given the option to either enforce or to ignore the contract.[107] The court summarized its holding: “This is a case where the workers’ compensation policy of employer tort immunity clashes head-on with the policy underlying the Child Labor Law. If one must give way to the other, we believe the Child Labor Law should prevail.”[108]

The Second Circuit has also expressly adopted the holding in Ewert. In Patterson v. Martin Forest Products, Inc.—yet another logging-related[109] case—an employer hired a 17-year-old at a sawmill in violation of the Child Labor Law.[110] As he was removing sticks from a conveyor belt, the minor’s hand became tangled in the contraption, which resulted in serious injury.[111] The child eventually sued the employer in tort.[112] The Second Circuit’s opinion resembles the Ewert decision: the court discussed the history of the Workers’ Compensation Act, the Louisiana Supreme Court’s Mott decision, and, finally, the Third Circuit’s Ewert decision.[113] Persuaded by the Third Circuit’s reasoning, the Second Circuit concluded that an illegally employed minor may elect to recover in either workers’ compensation or in tort.[114] If a minor elects the former option—workers’ compensation—then he ratifies or confirms the relatively null employment contract.[115] On the other hand, if the minor chooses the latter route—tort damages—then he tacitly revokes the relatively null contract.[116]

B.  The First and Fourth Circuit’s Approach: Tort Claims Barred

In the 41 parishes that comprise the Second and Third Circuits, an illegally employed minor’s recourse against his employer is broader than that afforded to an illegally employed minor in the First and Fourth Circuits.[117] This inconsistency stems from a long line of cases, wherein the First Circuit has consistently limited a minor’s recovery to workers’ compensation, effectively prioritizing an employer’s tort immunity over the Child Labor Law.[118] For example, in Griggs v. Bounce N’ Around Inflatables, L.L.C., the First Circuit’s most recent pronouncement on the issue, an illegally employed minor suffered several fractures in his foot while performing a task the Child Labor Law prohibited.[119] As a result, the child sued the employer in tort.[120] The trial court, relying on the Third Circuit’s Ewert decision and the Second Circuit’s adoption of Ewert in Patterson, permitted the minor’s tort suit to proceed; the court awarded him awarded $125,000 in general damages and nearly $25,000 in special damages.[121] On appeal, however, the First Circuit reversed the trial court’s judgment. The trial court had, according to the First Circuit, impermissibly deviated in following the “jurisprudentially created rule” of the Second and Third Circuits—that an illegally employed minor may recover in tort.[122]

The First Circuit’s rationale in confining an illegally employed minor to workers’ compensation lies in its interpretation of Mott v. River Parish Maintenance, Inc. In Mott, the Louisiana Supreme Court emphasized the language of the Workers’ Compensation Act, which states in part: “The provisions of this Chapter shall also apply to every person performing services arising out of an incidental to his employment in the course of his own trade, business, or occupation, or in the course of his employer’s trade, business, or occupation . . . .”[123] The First Circuit has interpreted Mott to stand for the proposition that “the exclusivity provisions [of the Workers’ Compensation Act] apply to ‘every person,’ including all minors, legally or illegally employed, and that a violation of the Child Labor Law does not remove a plaintiff from the exclusivity of the Act.”[124] But such an interpretation flies in the face of the Supreme Court’s explicit refusal to rule on whether all minors—legally or illegally employed—are limited to workers’ compensation.[125] Indeed, if the First Circuit is willing to strictly construe the language of the Workers’ Compensation Act to deny an illegally employed minor recovery in tort, it should likewise be eager to constrain its interpretation of Mott to what the Louisiana Supreme Court actually held—that the Act covers legally employed minors engaged in illegal tasks, not illegally employed minors.[126]

III. Closing the Circuit Split: Prioritizing Child Welfare Over an Employer’s Tort Immunity

The Louisiana Supreme Court’s decision in Mott has created a circuit split on whether an employer who hires a minor in violation of the Child Labor Law may nonetheless enjoy tort immunity if the minor is injured or, worse, killed.[127] As the Louisiana Civil Law Treatise suggests:

The problem probably calls for legislative consideration . . . . The legislature should decide whether loss of tort immunity is the proper sanction for an employer who violates the Child Labor Law. If so, this sanction should be specifically stated. If not, an appropriate and specific sanction should be provided.[128]

Thus, the question is not whether the court should apply a sanction; rather, the question is what sanction to employ.[129] But such a legislative fix to sanction employers will likely face pushback from Louisiana’s powerful business lobby. Until the Louisiana Legislature acts, however, Louisiana courts should follow the lead of the Second and Third Circuits, and permit an illegally employed minor to sue his employer in tort or to recover under workers’ compensation. Two primary reasons support such a result. First, it avoids the “anomaly” of rewarding an employer that has violated the Child Labor Law with tort immunity,[130] and, indirectly, provides an economic incentive to increase workplace safety.[131] And second, it furthers the underlying public policy of the Child Labor Law: to protect minors from hazardous occupations.[132]

A.    Furthering the Policy of the Child Labor Law: Giving Illegally Employed Minors an Election of Remedies

Children suffer from peculiar vulnerabilities inherent in the status of childhood.[133] The law has long recognized this fact.[134] These vulnerabilities—such as lack of “experience, intelligence, and education, and having limited capacity to understand rights and the consequences of waiving rights”—justify enhancing the legal rights accorded to children.[135] Thus, rather than confining a minor to recovery under workers’ compensation, Louisiana courts should provide an injured, illegally employed minor with an election of remedies: workers’ compensation or tort damages. This result avoids the inequitable anomaly of rewarding employers who violate the Child Labor Law with tort immunity,[136] and also affords an injured minor with adequate compensation for his injuries. Additionally, this result serves as an economic incentive to workplace safety and gives teeth to the Child Labor Law.

1.     Providing Adequate Compensation for Injured Children

            The workers’ compensation system is particularly ill-equipped when it comes to employed youth.[137] According to one legal commentator, “[i]njured teens receive minimal compensation, and the benefits for medical care fall far short of that required to return the victim to his or her condition prior to the accident.”[138] Because the majority of injured, employed minors have no spouse or dependents, their workers’ compensation benefits are minimal.[139] To add insult to injury, in many instances in which a minor is tragically killed on the job, the award granted to the surviving legal guardian is barely enough to cover burial expenses.[140] This system of grossly inadequate compensation, however, need not continue victimizing already-injured children. By allowing injured, illegally employed minors to sue their employers in tort, minors will be given the opportunity to recoup an adequate damage award that is also commensurate with the gravity of their injuries.

2.     Giving Teeth to the Child Labor Law

            Violations of child labor laws are on the rise.[141] Simultaneously, government is decreasing or altogether depleting enforcement measures.[142] Violators of the Louisiana Child Labor Law are subject to both criminal and civil penalties.[143] On the criminal end of the spectrum, violators face a stiff maximum penalty of $500 and up to six months imprisonment.[144] Notably, only one reported decision—from 1910—involved a criminal prosecution under the Child Labor Law.[145] Civil penalties are also capped at $500.[146] It is unlikely that a $500 fine per violation will serve as a “severe financial deterrent” to companies, whether large or small.[147] A similar argument by one legal commentator in the context of the Fair Labor Standards Act muses that the “remedies” under the Child Labor Law “are inappropriate substitutes for direct liability in damages which would be imposed on employers without the protection of workers’ compensation.”[148] Thus, “[l]iability for damages can provide an economic incentive to abide by the law without requiring enforcement by a governmental agency.”[149] Permitting injured, illegally employed minors the option to sue their employers, therefore, not only fills an otherwise administrative gap in the enforcement of the Child Labor Law, but also serves as an important economic incentive by encouraging employer compliance with the law.

3. Comparative Fault and Assumption of the Risk Defenses Unavailable to Employer

            Under the rule stated in Boyer v. Johnson, employers are barred from raising the minor’s contributory negligence (now comparative fault) or assumption of the risk as defenses to defeat recovery.[150] This rule also furthers the policy of the Child Labor Law. As the majority in Boyer stated, an employer cannot violate laws that seek to protect minors from their own “youth, inexperience, and relative lack of judgment,” and then allege that these “very defects in [the minor’s] character caused the accident.”[151] Other American jurisdictions have upheld similar results.[152]

4.     A Question of Nullity: Relative or Absolute?

            The First Circuit’s hypothetical argument that if the employment contract in this context violates a rule of public order—i.e., the Child Labor Law—then it is absolutely null and the minor cannot ratify or confirm it is misguided, and other state supreme courts have rejected this argument.[153] For example, in Blancato v. Feldspar Corp., the Connecticut Supreme Court “recognize[d] that agreements made in violation of public policy have been deemed unenforceable and ‘void.’”[154] The Blancato Court emphasized that “[c]ourts will ordinarily condemn entire agreements as unenforceable by both parties, however, only if both are in pari delicto.”[155] Stated differently, both the minor and the employer would have to be at fault for a court to strike down the entire employment contract. The Alaska Supreme Court also stated, and the Connecticut Supreme Court agreed, that it would be grossly “inequitable to allow the employer to avoid liability for compensation benefits on the basis of the illegality of the employment contract . . . .”[156] Thus, both high courts held that “this form of illegality,” in which an employer hires a minor in violation of the Child Labor Law, “produces a voidable, rather than void, contract.”[157] To put it in Louisiana parlance, the employment contract is relatively, rather than absolutely, null.

Conclusion

In at least two Louisiana circuits, an employer can flagrantly violate the Child Labor Law, illegally hire a child, and then enjoy immunity from civil lawsuits in tort when that child is later injured or, worse, killed on the job.[158] This effect is grossly inequitable,[159] and demands a legislative solution.[160] As the Second and Third Circuits have already recognized, permitting an illegally employed minor the option to recover either under workers’ compensation or in tort correctly prioritizes the policy interests the Child Labor Law implicates over that of the workers’ compensation system. At the same time, this result avoids the inequitable anomaly of rewarding violators of the Child Labor Law with tort immunity, and also serves as an economic incentive for employers to comply with the law. Most importantly, however, this result furthers the underlying purpose of the Child Labor Law—the protection of minors—by affording injured children with an adequate source of compensation. Louisiana must once again heed the “cry of the children,” and put child labor regulation before an employer’s workers’ compensation tort immunity.

[1] See Franklin v. Haughton Timber Co., 377 So. 2d 400, 402 (La. Ct. App. 1979), writ denied, 380 So. 2d 624 (La. 1980).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at 403.

[7] Id.

[8] Id.

[9] See generally id.

[10] Id. at 401.

[11] Latin for “let the superior make the answer,” the doctrine of respondeat superior “hold[s] an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency.” Respondeat Superior, Black’s Law Dictionary (10th ed. 2014). As one scholar tactfully put it, the doctrine “means nothing more than ‘look to the man higher up.’” Id. (quoting Prosser and Keeton on Torts 500 (William Prosser et al., eds., 5th ed. 1984)).

[12] Haughton Timber, 377 So. 2d at 405.

[13] Id. at 406.

[14] Walls v. Am. Optical Corp., 740 So. 2d 1262, 1276 (La. 1999) (noting that “[t]he Louisiana survival and wrongful death actions spring from the fountainhead of Louisiana tort law, Civil Code Article 2315 . . . .”).

[15] Haughton Timber, 377 So. 2d at 407.

[16] This Paper uses the phrase “child labor law” (lowercase) when referring to child labor laws generally; it uses the phrase “Child Labor Law” (capitalized) when referring to the collection of Louisiana statutes that regulate child labor. See La. Rev. Stat. §§ 23:151–234 (2018).

[17] Id. § 23:163(2). This statute was in effect at the time Haughton Timber was decided. See Boyer v. Johnson, 360 So. 2d 1164, 1166 (La. 1978).

[18] As one legal commentator summarized: “Essentially, the ‘exclusive remedy’ provision of workers’ compensation shields employers from all civil liability, even when an employer utilizes unlawful ‘oppressive child labor’ which results in the injury or death of the child.” Jeremy S. Sosin, The Price of Killing a Child: Is the Fair Labor Standards Act Strong Enough to Protect Children in Today’s Workplace?, 31 Val. U. L. Rev. 1181, 1184 (1997).

[19] Seymour Moskowitz, Child Labor in America: Who’s Protecting Our Kids?, 51 Lab. Law J. 202, 209–10 (2000).

[20] See Patterson v. Martin Forest Prods., Inc., 774 So. 2d 1148 (La. Ct. App. 2d Cir. 2000); Ewert v. Ga. Cas. & Sur. Co., 548 So. 2d 358 (La. Ct. App. 3d Cir. 1989).

[21] Ewert, 548 So. 2d at 362.

[22] See, e.g., Michael J. Rosenfeld, Young Adulthood as a Factor in Social Change in the United States, 32 Population & Dev. Rev. 27, 27 (2006) (discussing how the Industrial Revolution “transformed the way Americans worked” and its “profound effect on family life”).

[23] Department of Labor, Report on the Youth Labor Force 3 (June 2002).

[24] See id.

[25] See Earl E. Muntz, Industrial Accidents and Workplace Safety, 5 J. Educ. Soc. 397, 397­–98 (1932).

[26] See generally Hindman, infra note 36; Gurtler, infra note 50.

[27] Michael Schuman, History of Child Labor in the United States—Part 1: Little Children Working, Monthly Lab. Rev. (Jan. 2017), https://www.bls.gov/opub/mlr/2017/article/history-of-child-labor-in-the-united-states-part-1.htm [https://perma.cc/C5CH-SNUK].

[28] See Caroline G. Trinkley, Child Labor in America: An Historical Analysis, 13 In Pub. Int. 59, 59 (1993) (“Children have been employed throughout the entire history of the United States.”).

[29] Schuman, supra note 27.

[30] Susan Roth Breitzer, Child Labor, in Historical Encyclopedia of American Labor (Robert E. Weir & James P. Hanlan eds., 1st ed. 2004). See also Michele D’Avolio, Child Labor and Cultural Relativism: From 19th Century America to 21st Century Nepal, 16 Pace Int’l L. Rev. 109, 115 (2004) (stating that child labor was viewed as a “natural extension of the Puritan and Quaker religious tenets that preached the virtue of industry and the vice of idleness”).

[31] Mary Lyons-Barrett, Child Labor in Commercialized Agriculture, 1890–1966, in The World of Child Labor: An Historical and Regional Survey 477 (Hugh D. Hindman ed., 2009).

[32] See Trinkley, supra note 28, at 67 (“Rapid industrialization was responsible for the widespread usage of child labor and the conditions of exploitation that finally led to its regulation.”).

[33] Howard Zinn, A People’s History of the United States 267 (Harper Perennial Modern Classics 2015).

[34] Jack Hansan, The American Era of Child Labor, Social Welfare Hist. Project (2011), https://socialwelfare.library.vcu.edu/programs/child-welfarechild-labor/child-labor/ [https://perma.cc/E9G5-X74U].

[35] Trinkley, supra note 28, at 67–69. For a collection of photographs of child labor during this era, see Alan Taylor, Child Labor in America 100 Years Ago, Atlantic (July 1, 2015), https://www.theatlantic.com/photo/2015/07/child-labor-in-america-100-years-ago/397478/ [https://perma.cc/5M5F-6R6R].

[36] Hugh D. Hindman, Evolution of U.S. Child Labor Policy, in The World of Child Labor, supra note 31, at 482.

[37] Marie A. Failinger, “Too Cheap Work for Anybody But Us”: Toward a Theory and Practice of Good Child Labor, 35 Rutgers L.J. 1035, 1048–49 (2004).

[38] Hindman, supra note 36.

[39] Hindman, supra note 36.

[40] For a brief biography of Jean Gordon, see Jean Gordon, Historic New Orleans Collection, https://www.hnoc.org/virtual/voices-progress/jean-gordon [https://perma.cc/L3MF-8F83] (last visited Oct. 3, 2018).

[41] Samuel C. Shepherd, Jr., In Pursuit of Louisiana Progressives, 46 J. La. Hist. Ass’n 389, 396 (2005).

[42] Id. (quoting The New Child Labor Law for Louisiana, Outlook 90 (1908)).

[43] Id.

[44] State v. Rose, 51 So. 496, 498 (La. 1910); see also Nancy Pride, Incidents Preceding the Louisiana Child Labor Law of 1912, 19 J. La. Hist. Ass’n 437, 438­–40 (1978).

[45] Shepherd, Jr., supra note 41, at 397.

[46] Id.

[47] Id.

[48] Clifford B. Sobin, History of Maryland Workers’ Compensation, in 1 Md. Workers’ Compensation § 1:1 (Sept. 2018 update).

[49] Sobin, supra note 48 (noting that “Austria, Norway, Finland, England, and finally the United States” passed workers’ compensation laws after the first law was enacted in Germany).

[50] Paul Raymond Gurtler, The Workers’ Compensation Principle: A Historical Abstract of the Nature of Workers’ Compensation, 9 Hamline J. Pub. L. & Pol’y 285, 288 (1989).

[51] Workers’ Compensation, Black’s Law Dictionary (10th ed. 2014).

[52] Id.

[53] Edward T. Wahl & Jenny B. Wahl, Disability Discrimination and Workers’ Compensation After the Americans with Disabilities Act: Sorting Out the Rights and Duties, 16 Hamline L. Rev. 81, 85 (1992).

[54] Atchison v. May, 10 So. 2d 785, 788 (La. 1942).

[55] Rando v. Anco Insulations Inc., 16 So. 3d 1065, 1077 (La. 2009). Rando presents an excellent discussion on the history of workers’ compensation, both generally and its application in Louisiana law. See id. at 1076–80.

[56] Id. at 1077 (quoting La. Sen. Journal Reg. Sess. 1914, p. 33).

[57] Id.

[58] Id.

[59] Roberts v. Sewerage & Water Bd. of New Orleans, 634 So. 2d 341, 345 (La. 1994) (emphasis added).

[60] Id.

[61] See cases cited infra notes 62 (permitting tort claims by illegally employed minors), 65 and 68 (barring tort claims by illegally employed minors).

[62] See Patterson v. Martin Forest Prods., Inc., 774 So. 2d 1148 (La. Ct. App. 2d Cir. 2000); Ewert v. Ga. Cas. & Sur. Co., 548 So. 2d 358 (La. Ct. App. 3d Cir. 1989).

[63] Patterson, 774 So. 2d at 1151–52.

[64] Id. at 1152.

[65] See Griggs v. Bounce N’ Around Inflatables, L.L.C., 248 So. 3d 563 (La. Ct. App. 1st Cir. 2018), writ granted, 253 So. 3d 802 (La. 2018); Noble v. Blume Tree Servs., Inc., 646 So. 2d 441 (La. Ct. App. 1st Cir. 1994); Messer v. Bagwell Coatings, Inc., 283 So. 2d 279 (La. Ct. App. 1st Cir. 1973); Matthews v. Buff Hottle Shows, Inc., 109 So. 2d 261 (La. Ct. App. 1st Cir. 1959).

[66] Griggs, 248 So. 3d at 572.

[67] Id.

[68] See, e.g., McLaughlin v. Boykin, 127 So. 2d 86, 88 (La. Ct. App. 4th Cir. 1961).

[69] Id.

[70] Ewert v. Ga. Cas. & Sur. Co., 548 So. 2d 358, 361 (La. Ct. App. 3d Cir. 1989).

[71] Id.

[72] See Patterson v. Martin Forest Prods., Inc., 774 So. 2d 1148 (La. Ct. App. 2d Cir. 2000); Ewert, 548 So. 2d 358.

[73] Ewert, 548 So. 2d at 362 (“This is a case where the workers’ compensation policy of employer tort immunity clashes head-on with the policy underlying the Child Labor Law.”).

[74] Compare Ewert, 548 So. 2d at 359 with Franklin v. Haughton Timber Co., 377 So. 2d 400, 402 (La. Ct. App. 1979).

[75] Ewert, 548 So. 2d at 359.

[76] Id.

[77] Id.

[78] See id. at 359–60.

[79] Id. at 359.

[80] Noble v. Blume Tree Servs., Inc., 646 So. 2d 441, 442 (La. Ct. App. 1994) (emphasis added).

[81] See Honeycutt v. Nat’l Auto. & Cas. Ins. Co., 41 So. 2d 119, 120–21 (La. Ct. App. 1949); Zumo v. Cavin, 43 So. 2d 92 (La. Ct. App. 1949); Kennedy v. Johnson Lumber Co., 33 So. 2d 558 (La. Ct. App. 1947).

[82] Chauvin v. S. Tech. & Serv., Inc., 888 So. 2d 980, 982 n.2 (La. Ct. App. 2004).

[83] Ewert, 548 So. 2d at 360.

[84] Id. at 360–61.

[85] Mott v. River Parish Maintenance, Inc., 432 So. 2d 827 (La. 1983).

[86] Compare Ewert, 548 So. 2d at 360 (concluding that Mott does not stand for the proposition that a minor hired in violation of the Child Labor Law is barred from suing in tort) with Griggs v. Bounce N’ Around Inflatables, L.L.C., 248 So. 3d 563, 570 (La. Ct. App. 2018) (stating that the effect of the Mott decision “has been to create division amongst the circuits”).

[87] Mott, 432 So. 2d at 829.

[88] Ewert, 548 So. 2d at 360.

[89] Mott, 432 So. 2d at 832 n.5.

[90] Ewert, 548 So. 2d at 360 (“Not only has [the issue] not been decided by the supreme court, but also neither has it been directly addressed by any appellate court.”).

[91] Id. at 360–61.

[92] Id. at 361.

[93] Id. at 361–62.

[94] Mott, 432 So. 2d at 833 (Lemmon, J., dissenting).

[95] Mott v. River Parish Maintenance, 481 So. 2d 1021, 1021 (La. 1986) (Dennis, J., dissenting) (citation omitted). Unusually, Justice Dennis’ dissenting opinion was issued nearly three years after the majority opinion was released and, therefore, has a different reporter number.

[96] Id.

[97] Id.

[98] See Mott, 432 So. 2d at 833 (Lemmon, J., dissenting) and Mott, 481 So. 2d at 1021 (Dennis, J., dissenting) (relying on Boyer v. Johnson, 360 So. 2d 1164 (La. 1978)).

[99] Franklin v. Haughton Timber Co., 380 So. 2d 624 (La. 1980) (Dennis, J., dissenting). See also supra Introduction.

[100] Haughton Timber, 380 So. 2d 624.

[101] Id.

[102] See Ewert v. Ga. Cas. & Sur. Co., 548 So. 2d 358, 361 (La. Ct. App. 3d Cir. 1989).

[103] Id.

[104] Id.

[105] Id.

[106] Id.

[107] Id.

[108] Id.

[109] Unsurprisingly, logging is one of the most dangerous occupations in the United States. Todd M. Frazier & Robert J. Mullan, Occupational Injuries and Deaths among Loggers, United States, Morbidity & Mortality Weekly Rep. (Aug. 1, 1983). See also Logging workers had highest rate of fatal work injuries in 2015, Bureau Lab. Stat. (Jan. 11, 2017), https://www.bls.gov/opub/ted/2017/logging-workers-had-highest-rate-of-fatal-work-injuries-in-2015.htm [https://perma.cc/7TZE-SJTZ]; Albert L. Lefort, Jr., Cornelis F. de Hoop & John C. Pine, Characteristics of Injuries in the Logging Industry of Louisiana, USA: 986 to 1998, 14 Int’l J. Forest Engineering (2003), https://journals.lib.unb.ca/index.php/ijfe/article/view/9873/10031 [https://perma.cc/23ZU-QNTW] (“[L]oggers are 19 times more likely to be killed on the job.”). The majority in Ewert was attuned to the heightened risks attendant with the logging industry: “Hardly any aspect of logging can be imagined that is not fraught with great risk to the inexperienced and immature.” Ewert, 548 So. 2d at 361.

[110] Patterson v. Martin Forest Prods., Inc., 774 So. 2d 1148, 1149 (La. Ct. App. 2d Cir. 2000).

[111] Id.

[112] Id.

[113] Id.

[114] Id. at 1152 (relying on Ewert, 548 So. 2d 358).

[115] Id. The Patterson court uses the terms “ratify” and “confirm” interchangeably, but there is a theoretical, albeit minor, difference between the two. A ratification “is a declaration whereby a person gives his consent to an obligation incurred on his behalf without his authority.” La. Civ. Code art. 1843 (2018). On the other hand, a confirmation is “a declaration whereby a person cures the relative nullity of an obligation.” Id. art. 1842. The more accurate term in this context is confirmation.

[116] Id.

[117] Compare Patterson, 774 So. 2d 1148 (allowing minor to elect either workers’ compensation or tort damages) and Ewert, 548 So. 2d 358 (same) with Griggs v. Bounce N’ Around Inflatables, L.L.C., 248 So. 3d 563 (La. Ct. App. 1st Cir. 2018) (barring minor’s tort suit because of “exclusive” nature of workers’ compensation) and McLaughlin v. Boykin, 127 So. 2d 86, 88 (La. Ct. App. 4th Cir. 1961) (same). For a map of Louisiana’s judicial districts, see Maps of Judicial Districts, La. Sup. Ct., https://www.lasc.org/about_the_court/map02.asp [https://perma.cc/RG44-TAYL] (last visited Oct. 22, 2018).

[118] See Griggs, 248 So. 3d 563; Noble v. Blume Tree Servs., Inc., 646 So. 2d 441 (La. Ct. App. 1st 1994); Messer v. Bagwell Coatings, Inc., 283 So. 2d 279 (La. Ct. App. 1st Cir. 1973); Matthews v. Buff Hottle Shows, Inc., 109 So. 2d 261 (La. Ct. App. 1st Cir. 1959).

[119] Griggs, 248 So. 3d at 564. The Louisiana Supreme Court has an opportunity to resolve the circuit split on this issue; it granted a writ of certiorari to review the First Circuit’s decision in Griggs. See Griggs v. Bounce N’ Around Inflatables, L.L.C., 253 So. 3d 802 (La. 2018). Oral argument is scheduled for December 3, 2018. Official Docket, La. Sup. Ct., https://www.lasc.org/docket/dockets/Dec2018.pdf [https://perma.cc/S5G7-9V99] (last visited Nov. 12, 2018).

[120] Id.

[121] Id. at 567.

[122] Id. at 572.

[123] Mott v. River Parish Maintenance, Inc., 432 So. 2d 827, 831 (La. 1983) (quoting La. Rev. Stat. § 23:1035).

[124] Griggs, 248 So. 3d at 572.

[125] Mott, 432 So. 2d at 832 n.5.

[126] See id. at 832, 832 n.5.

[127] Griggs, 248 So. 3d at 570.

[128] H. Alston Johnson III, Workers’ Compensation Law & Practice, in 13 Louisiana Civil Law Treatise § 53 (5th ed.).

[129] See generally id.

[130] See Ewert v. Ga. Cas. & Sur. Co., 548 So. 2d 358, 362 (La. Ct. App. 3d Cir. 1989).

[131] See Sosin, supra note 18, at 1209–14.

[132] Ewert, 548 So. 2d at 361.

[133] See Catherine J. Ross, From Vulnerability to Voice: Appointing Counsel for Children in Litigation, 64 Fordham L. Rev. 1571, 1571, 1587–95 (1996). See also May v. Anderson, 345 U.S. 528, 536 (1953) (Frankfurter, J., concurring) (“Children have a very special place in life which the law should reflect.”); Sosin, supra note 18, at 1212 (noting that “[m]inors have proven themselves to be developmentally incapable of assessing risks of injury in hazardous occupations . . . .”).

[134] See Ross, supra note 133, at 1571 (nothing that “[t]he notion that children are defined by their ‘peculiar vulnerabilities’ dates back to Blackstone . . . .”).

[135] Id. at 1590, 1572.

[136] Ewert, 548 So. 2d at 362.

[137] Moskowitz, supra note 19, at 209.

[138] Id. (footnote omitted).

[139] Id.

[140] Id. at 209–10 (footnote omitted)

[141] See Department of Labor, supra note 23, at 11 (“Recorded child labor violations were on a steep increase in the late 1980s.”); Kimberly J. Rauscher, Carol W. Runyan, Michael Schulman & J. Michael Bowling, US Child Labor Violations in the Retail and Service Industries: Findings From a National Survey of Working Adolescents, 98 Am. J. Pub. Health (2008), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2509604/ [https://perma.cc/XLG4-ZS2A] (concluding that “[s]ignificant numbers of US adolescents are employed in violation of the child labor laws . . . .”). See also Priyanka Boghani, Q&A: America’s “Invisible” Child Labor Problem, PBS (Apr. 24, 2018) (noting child labor violations remain “a significant problem”).

[142] See Child Labor Enforcement: Are We Adequately Protecting Our Children?: Hearing before the H. Subcomm. on Workforce Protections, 110th Cong. (2008) (statement of Sally Greenberg, Executive Director, National Consumers League, and Co-Chair, Child Labor Coalition) (criticizing the U.S. Department of Labor’s lax enforcement of child labor laws and the decrease in the number of child labor investigations); Moskowitz, supra note 19, at 2010 (noting the “notoriously lacking” administrative enforcement of state child labor laws).

[143] La. Rev. Stat. § 23:231(B)–(C) (2018).

[144] Id. § 23:231(B).

[145] See State v. Rose, 52 So. 165 (La. 1910). See generally discussion supra Part I.A.

[146] La. Rev. Stat. § 23:231(C).

[147] Cf. Sosin, supra note 18, at 1214–15 (arguing that a $10,000 fine per violation of child labor laws under the Fair Labor Standards Act is insufficient to serve as a “severe financial deterrent” to companies).

[148] Id. (footnote omitted).

[149] Id. (footnote omitted).

[150] See Boyer v. Johnson, 360 So. 2d 1164, 1169 (La. 1978). See also Ewert v. Ga. Cas. & Sur. Co., 548 So. 2d 358, 362 (La. Ct. App. 3d Cir. 1989) (relying on Boyer, 360 So. 2d 1164); Moskowitz, supra note 19, at 210 (citing Boyer, 360 So. 2d 1164).

[151] Boyer, 360 So. 2d at 1169.

[152] See 27 Am. Jur. 2d Employment Relationship § 339 (Aug. 2018 update) (“Public policy requires that a child’s compensation for injuries received in the course of unlawful employment not be diminished or prevented by the very negligence and lack of care against which the child labor laws were designed to guard.”). See, e.g., “Absolute” or “Strict” Statutory Liability; Comparative Negligence and Assumption of Risk, in 1 Comparative Negligence Manual § 5:34 (3d ed.) (discussing Wisconsin’s refusal “to allow comparative negligence to be used as a defense in an action on behalf of a minor to recover for injuries suffered while employed in violation of the child labor laws”).

[153] See Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 254 (Alaska 1976); Blancato v. Feldspar Corp., 522 A.2d 1235, 1238 (Conn. 1987) (relying on Beukers, 554 P.2d 250).

[154] Blancato, 522 A.2d at 1238 (citations omitted).

[155] Id. (citations omitted). In pari delicto is Latin for “in equal fault.” In Pari Delicto, Black’s Law Dictionary (10th ed. 2014).

[156] Beukers, 554 P.2d at 253–54.

[157] Id. at 254; Blancato, 522 A.2d at 1238 (relying on Beukers, 554 P.2d 250).

[158] See generally cases cited supra notes 65, 68.

[159] Moskowitz, supra note 19, at 210.

[160] See Johnson III, supra note 128, at § 53. See also supra Part III.

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