UM tragedy stirs child labor law debate

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George Schaefer’s summer began like that of most other teen-agers. He got a part-time job at a place where he could study a profession he might want to pursue as a career.

Now, as summer comes to a close, the 16-year-old no longer is being looked upon as a typical teen-ager. The Sullivan boy – seriously injured on the job and hospitalized in Boston – may be the catalyst that prompts the Legislature to undertake a thorough evaluation of Maine’s child labor laws.

And while federal labor laws apply throughout the state, lawmakers and others also have been surprised to learn in recent days that more stringent state statutes governing children in the work force do not apply to state agencies or the university system.

“I can’t come up with any good reasons why the state should be exempt,” said state Sen. Tom Sawyer, R-Bangor, a member of the Legislature’s joint standing committee on labor, during a recent interview. “I’m sure we’ll be having that conversation.”

On July 29, Schaefer was seriously hurt when he was overcome by hydrogen sulfide gas while cleaning a tank at the University of Maine Center for Cooperative Aquaculture Research in Franklin. William O’Coin of Ellsworth, a systems manager at the facility, died during a desperate effort to rescue the teen.

The university earlier this month was cited for 12 violations of federal workplace safety laws and fined $110,000 by the Bureau of Labor Standards. This week, university officials asked the bureau for a chance to learn more about the actual violations and get information on ways to prevent them from happening again.

Maine’s Bureau of Labor Standards is authorized by the federal government to apply U.S. Occupational Safety and Health Administration rules to the public sector, which includes government agencies and the university system. The federal government only enforces OSHA rules in the private sector.

But the university is not required to follow the state’s child labor laws, including those that restrict the amount of hours children work and what they can do on the job. Private employers, however, must follow the rules or face fines that start at $250 per violation.

State agencies are exempt from adhering to child labor laws because the laws do not specifically state that they should, according to the Maine Attorney General’s Office.

And that’s the case with all state laws, not just those pertaining to child labor. Words such as “applicable to the state and its agencies” must be written into the law for the state to be required to follow it.

“It goes way back to the old theory that the sovereign doesn’t have to follow its own laws unless it’s written in the laws to include the state,” said Gwendolyn Thomas, an attorney specializing in child labor laws with the Attorney General’s Office.

One law gives the director of the Bureau of Labor Standards the authority to restrict a teen from performing any work-related activity that he “determines to be hazardous, dangerous to life or limbs … or when the minor’s health would be injured.”

The state has defined 18 hazardous jobs that are off-limits for 16- and 17-year-olds. Those include working with pesticides; the manufacturing or storage of explosives; mining; roofing; excavation; and the operation of power equipment, such as hoists, forklifts, slicers and balers.

But the list of hazardous restrictions, as it is written, does not include preventing a minor over the age of 16 from working with toxic chemicals or entering a confined space, such as a tank, said Michael Frett, the bureau’s director. The teen, however, must have the proper supervision when doing either of them, he said.

At UM’s Franklin center, Frett said, “there appeared to be proper supervision up to a point.”

But even if state laws had applied to the university, the Bureau of Labor Standards is steadfast in declaring that “there wouldn’t have been any child labor law violations” at the Franklin center.

The work done at the facility “had not been declared hazardous,” said Anne Harriman, director of the bureau’s wage and hour division, which oversees child labor laws. “It hadn’t been printed as a hazardous occupation.”

But, she added, “we, of course, couldn’t have anybody inspect [the center] for child labor [violations] because we didn’t have the jurisdiction.”

Frett, who is given the authority under state law to restrict jobs that may be hazardous to teens, said this week that he couldn’t make a determination on his own about whether minors over 16 should not work around certain toxic chemicals.

“That is a question that I don’t think I’m the right person to answer,” Frett said. “It evokes input from other arenas.”

More information would have to be gathered to assess what effects changes in the law would have on private businesses, he said. Representatives from private businesses, lawmakers and state officials should all be involved in the process, he added.

A hastily constructed law restricting children from working around all toxic chemicals might have far-reaching implications that are unnecessary and much broader than intended, he said.

For example, he said, a sweeping limitation on children working near toxic chemicals would mean that minors could not have jobs at places where gasoline, kerosene and propane fuels are used.

“Are you going to say a 16-year-old can’t mow a lawn?” Frett asked. “Mowing a lawn requires gas. Under proper supervision, a minor can mow a lawn.”

At the University of Maine, human resources manager Tracy Bigney said she questioned whether the school is excluded from adhering to child labor laws.

“I’m not certain that’s correct,” Bigney said. “We certainly operate as if those laws apply to us. University policy is to follow them.”

The state’s publicly funded colleges and universities employ more minors than any state agencies, Harriman said. About 25 teens under the age of 18 work in dining halls and other departments at the University of Maine in Orono, the flagship campus of the University of Maine System.

Bigney said she estimates about 50 teens work throughout the university system.

Schaefer’s job was classified as part time. He was scheduled to work 20 hours a week, but he didn’t have a specific job title and no direct supervisor, said Joe Carr, a University of Maine spokesman.

“He was taking care of things as they came up,” Carr said.

That included being asked to clean roughly four inches of sludge out of a 6-foot-wide concrete tank. Schaefer was in the tank, spraying water from a hose onto the sludge, when he was overpowered by hydrogen sulfide fumes being released from the bottom of the tank.

The tank, which recycles water used for cultivating halibut, was part of a sealed system that wasn’t designed to be cleaned, university officials later learned. And the system’s water had been tested positive for hydrogen sulfide about a week before the accident, they said.

The university primarily was cited for failing to test the air inside the tank before workers entered it, for the lack of training provided to employees who entered the tank, and for absence of an evacuation plan in case something went wrong.

When the violations were cited earlier this month, Frett said OSHA rules specify that when dealing with confined space, one or more persons must be outside as attendants.

“No one’s been able to say who exactly were the only persons there moments before both wound up inside the tank,” he said.

Last week, Carr said he did not know who gave Schaefer the order to clean the tank, although O’Coin and Schaefer were working together near it.

“I’m not sure that we know that yet,” Carr said. “[We’re] developing a detailed examination of what happened.”

The Legislature, too, probably will want to know more about what happened at Franklin, said Sen. Beth Edmunds, co-chairperson of the labor committee. It’s likely the Legislature will undertake a review of child labor laws, including those governing minors working with hazardous chemicals, and whether those laws should also apply to all public institutions.

“It appears the law should be changed,” she said.

The officials working in the enforcement of child labor laws – Frett, Harriman and Thomas – each said they were not authorized to comment on whether they believed the laws should be changed.

“I really can’t say what I feel about that,” Thomas said. “I’m not in a position to develop state policy.”

But, attorney Thomas added, “I was surprised that somebody 16 was working the job that child was working.”

Harriman said a thorough review by the Legislature on what types of jobs are hazardous to teens might be the right thing to do. Until Schaefer’s accident, only a couple of businesses were fined for allowing teens to work with hazardous materials. Typically, she said, such violations related to minors working with power equipment such as slicers or mixers at restaurants.

“In this particular incident, nothing like this has happened before,” Harriman said. “What happened with the 16-year-old boy was unfortunate. And it makes me want to look at what we can do. I’m sure it will be looked at when the Legislature is back in session.”