The Department of Labor’s child labor cases remain pending in court

In May, the U.S. Department of Labor filed lawsuits against Mar-Jac Poultry of Alabama and Hyundai Motor Manufacturing Alabama, accusing the companies of using “oppressive child labor” and violating the Fair Labor Standards Act.

Five months later, both cases are still working their way through the court system, with Hyundai and Mar-Jac Poultry attempting to have the lawsuits dismissed with varying degrees of success. Of course, even if none of the cases are successfully dismissed, the cases rely on fairly ambitious interpretations of the FLSA that can be undermined under judicial review.

While denying a request for a preliminary injunction against Mar-Jac Poultry in July, Judge L. Scott Coogler expressed some skepticism about the Labor Department’s case, criticizing the proposed “appearance and conduct test” and questioning whether the The children in question were actually engaging in a prohibited activity.

Shortly after the initial lawsuit was filed, Mar-Jac Poultry responded with a counterclaim seeking “at least $19,989,381.79” in compensation for alleged damages from the Labor Department’s investigation.

The Labor Department moved in September to dismiss Mar-Jac’s counterclaim, saying the company had no legal right to file the counterclaim in the first place. Under the Federal Torts Claims Act, Labor Department attorneys argued, federal agencies enjoy sovereign immunity that protects them from “any claims arising from … interference with contractual rights.”

The memorandum supporting the motion to dismiss also states that “Mar-Jac fails to adequately assert a duty enforceable under Alabama law” and that it improperly treats Acting Secretary of Labor Julie Su, rather than the United States, as a counterdefendant as required by the FTCA.

A few weeks after the Labor Department attempted to dismiss the counterclaim, one of Mar-Jac’s attorneys moved “to dismiss without prejudice to his counterclaim.” The court officially dismissed the lawsuit in mid-November.

In August, the case against Hyundai Motor Manufacturing Alabama, LLC was referred to a judge; SMART Alabama, LLC; and Best Practice Service, LLC has also stalled as the companies repeatedly try to reject it entirely.

The first round of motions to dismiss were moot after the Labor Department amended its complaint in September.

The amended complaint focuses on a 13-year-old girl who worked “up to 50 to 60 hours per week” at the SMART facility in Luverne. According to the Ministry of Labor, the girl began working there with documents under one name, but these documents were eventually rejected and she submitted documents under another name.

After this change, she was paid under the second name, but her official name tag still bore the first name. Yet the underage employee was only identified as such after he “failed to return home after work,” when the “investigation triggered an AMBER alert.” She was “eventually found in Georgia with an adult male colleague from SMART.”

Hyundai Motor Manufacturing Alabama’s motion to dismiss focuses on the alleged lack of a “reasonable likelihood of future harm” in the lawsuit and also criticizes “vague, unspecified allegations” and “the lack of a statement of claim.” And similar to Judge Coogler in the Mar Jac case, a SMART filing states, “Appearance alone is not sufficient to prove that SMART should have known.”

Perhaps the companies’ boldest legal claim is that “Su’s service as acting labor secretary is unconstitutional.” Republicans have repeatedly criticized her more than year-long tenure as acting secretary without Senate confirmation, but last year the Government Accountability Office concluded: ” Ms. Su is lawfully serving as acting secretary.”

The DOL’s response to the new motions to dismiss reads in part: “In the first amended complaint, the Acting Secretary asks who bears responsibility for this child labor violation.” The defendants in this case, HMMA, SMART Alabama, LLC (“SMART “) and Best Practice Service, LLC (“BPS”), responded emphatically: Not us!”

While the cases have managed to survive legal challenges so far, the fate of both cases after the presidential transition also remains unclear. Su has drawn repeated criticism from Republicans and the business community for some of her decisions as acting secretary. Alabama Senator Tommy Tuberville voted against her confirmation, calling her “too radical to be labor secretary.”

Su’s likely successor, Republican congresswoman Lori Chavez-DeRemer, was endorsed by Teamsters President Sean O’Brien as a “champion of America’s workers,” but Republicans in several states, including Alabama, have sought to loosen child labor laws in recent years .

Because the U.S. government often changes its positions in lawsuits when a new president takes the oath of office, it remains possible that both cases will be voluntarily dismissed early next year.