As one does, I was recently reading U.S. DOL Wage and Hour Division (“WHD”) Field Assistance Bulletin (“FAB”) 2023-3 regarding “Prohibitions against the shipment of ‘Hot Goods’ under the Child Labor Provisions of the Fair Labor Standards Act.” You may be disappointed to learn that the term “hot goods” does not appear in the FLSA, but section 212(a) of the Act provides the operative definition for this fun phrase: “any goods produced in an establishment situated in the United States in or about which within thirty days prior to the removal of such goods therefrom any oppressive child labor has been employed.”
FABs are meant to provide enforcement guidance to WHD field personnel, and this one “clarified” elements of the hot goods provisions, as well as discussed potential penalties and the availability – in certain circumstances – of a good faith defense for purchasers of hot goods. According to section 212(a), to demonstrate good faith, purchasers must show they relied “on written assurance from the producer, manufacturer, or dealer that the goods were produced in compliance with the requirements of this section, and . . . acquired such goods for value without notice of any such violation.” FAB 2023-3 indicates the good faith analysis is case-specific and requires a purchaser’s “objectively reasonable” actual knowledge or belief “that the written assurance of compliance was true, and [the purchaser] was not aware of any other child labor violations.” Purchasers cannot...
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