Opinion: Labor Department settles complaint over its enforcement tactics

Remember that case the federal Department of Labor pursued against a couple of Oregon blueberry growers, accusing them of underpaying their pickers? And the growers pushed back? Well, the feds settled with the growers earlier this week, finally copping to what was a clear bit of overreach.

I wrote about the case back in October. It was rooted in the Fair Labor Standards Act’s “hot goods” provision, which gives the feds the authority to stop shipment across state lines of “any goods produced in violation of the minimum wage, overtime pay, child labor or special minimum wage provisions. In the absence of an employer voluntarily correcting the violations, the Wage and Hour Division may seek to restrain the shipment of the goods (e.g., not allowing the manufacturer to ship the goods to the wholesaler).”

It’s a powerful tool, as I noted before, and has been invaluable over the years in pushing law-breaking employers into fast settlements – and faster justice for workers – than would occur through the standard legal process.

But in this case, the Labor Department over-reached. In 2012, it accused two growers of violating laws covering record-keeping and minimum wage levels. The feds warned that if the growers did not agree to a settlement, which included waiving their right to appeal to the courts, and pay $220,000 in backpay and fines, then Labor Department officials would seek to invoke the “hot goods” provision. Given the timing, that meant the growers either had to sign or lose hundreds of thousands of dollars in perishable blueberries that would not have made it to market.


So the growers signed and paid. A year later, they went to the courts anyway accusing the feds of, in essence, blackmail. A federal judge agreed. Now the Labor Department has backed off, according to the Oregonian newspaper. (Fairwarning also has a good overview of the case.) No one admits guilt for anything in the agreement, which still leaves hanging the question of whether the growers did, indeed, violate labor law.

Agricultural workers are among the most abused in the American economy. Many are here without legal permission, so they tend not to complain when victimized by unscrupulous growers and employers. Working conditions are harsh, and the labor itself takes a significant physical toll (not to mention all that exposure to pesticides and fertilizers).

The feds are right to keep a close eye on the industry.

“We believe it’s very important the Department of Labor enforce the minimum wage because there are rampant violations of the minimum wage law in agriculture,” Bruce Goldstein, president of the nonprofit Farmworker Justice, told the Oregonian. “We expect the Department of Labor to vigorously enforce the law and apply for hot goods injunctions when appropriate.”

At the same time, the feds must respect the rights of the growers, and the limits of the law. The government should not strong-arm anyone into giving up the right to seek redress in the courts. But the growers also need to be held accountable when they violate their workers’ rights.

Meanwhile, U.S. Rep. Kurt Schrader (D-Oregon) is pushing ahead with legislation that would bar the Labor Department from using the “hot goods” provision when perishable goods are involved. That goes too far, as well. The provision is a good tool to compel compliance with wage laws. The government should continue to be able to use it when appropriate. But it should not make any settlements contingent on giving up the right to seek a legal overturn -- that was the problem in the Oregon case, not the provision itself.

The better solution: Use the “hot goods” provision when defensible, and if growers feel they are wrongly accused, they can seek an injunction or sue for restitution after the fact. That’s what the courts are for.

Follow Scott Martelle on Twitter @smartelle.