Farmworker Justice Update 8/1: Hot Goods Hearing

Democrats and Republicans rarely find common ground in Congress these days, but apparently attacking Department of Labor’s(DOL) efforts to protect our nation’s vulnerable farmworkers is one area in which they agree. On Wednesday, the House Agriculture Subcommittee on Horticulture, Research, Biotechnology, and Foreign Agriculture held a hearing titled “To review the impact of enforcement activities by the Department of Labor on specialty crop growers,” in which the DOL’s Wage and Hour Administrator David Weil and Oregon Labor Commissioner Brad Avakian testified.

Under the hot goods provisions, goods produced in violation of the Fair Labor Standards Act’s (FLSA) minimum wage, overtime and child labor provisions are considered “hot goods” because they are tainted by the labor violations and pollute the channels of interstate commerce. The FLSA makes it illegal for anyone to transport, ship, deliver, or sell “hot goods” in interstate commerce. Section 17 of the FLSA authorizes the Department of Labor to seek a court order forbidding anyone from placing tainted goods into the stream of interstate commerce (a “hot goods order”). Hot goods orders are a powerful remedy against illegal practices that harm low-paid workers who cannot afford to wait to be paid properly. To read more about the hot goods provisions, see our fact sheet.

The Horticulture, Research, Biotechnology, and Foreign Agriculture subcommittee is led by members from farming districts: Chairman Austin Scott (R-GA) and Ranking Member Kurt Schrader (D-OR). Both of these members seem to have a bullseye on farmworkers. Rep. Schrader has introduced two bills to limit farmworkers’ rights to healthcare and labor protections. Rep. Scott has also introduced legislation to defund the Legal Services Corporation just days after the legal services program in Georgia announced that it had assisted an EEOC determination that a Georgia grower in Scott’s district was discriminating against US workers in favor of H-2A agricultural guestworkers.

Rep. Schrader’s vendetta against DOL on behalf of “my” farmers was clear in the many, many, many questions he asked. Many of the questions were related to a 2012 case in which DOL invoked the hot goods provisions against 3 blueberry growers in Oregon for failure to pay the minimum wage to many workers and for violation of child labor laws. Although the cases settled, two of the growers sought to vacate the settlement agreements almost a year later by claiming that their due process rights had been violated and they had been coerced into accepting the settlements due to the threat of a hot goods injunction. A federal district judge overturned the settlement agreements and reopened the case. DOL has requested permission to appeal the decision; the case is still pending.

With the sole exception of Wage and Hour Administrator Weil, the hearing lacked any consideration of the farmworker perspective, including the extensive labor law violations in agriculture or the experiences of the farmworkers in the controversial Oregon cases. Instead, the underlying sympathies and assumptions seemed to be that contrary to widespread statistics, growers are not really violating the law, and thus, are the real victims. There were many questions about how the poor beleaguered farmers will recoup their attorneys’ fees, legal costs, etc.

Of course, not all agricultural employers break the law. In fact, the primary purpose of the hot goods provisions is to protect law-abiding employers from being competitively undermined by unscrupulous employers seeking unfair business advantage by unlawfully lowering their labor costs.

The hearing sent a clear message to the Obama Administration to curtail enforcement of the hot goods provision in agriculture. We urge the DOL to continue to enforce the FLSA hot goods provision to maximize its limited enforcement capabilities, to incentivize compliance with the law, and to ensure that all workers receive their fair day’s pay. Representatives Scott and Schrader have filed a bill, HR 1387, that would exclude perishable agricultural goods from the hot goods provisions of the FLSA. Congress should end the discrimination against farmworkers in our nation’s labor laws, not seek to expand the exclusions.
 

Democrats and Republicans rarely find common ground in Congress these days, but apparently attacking Department of Labor’s(DOL) efforts to protect our nation’s vulnerable farmworkers is one area in which they agree. On Wednesday, the House Agriculture Subcommittee on Horticulture, Research, Biotechnology, and Foreign Agriculture held a hearing titled “To review the impact of enforcement activities by the Department of Labor on specialty crop growers,” in which the DOL’s Wage and Hour Administrator David Weil and Oregon Labor Commissioner Brad Avakian testified.

Under the hot goods provisions, goods produced in violation of the Fair Labor Standards Act’s (FLSA) minimum wage, overtime and child labor provisions are considered “hot goods” because they are tainted by the labor violations and pollute the channels of interstate commerce. The FLSA makes it illegal for anyone to transport, ship, deliver, or sell “hot goods” in interstate commerce. Section 17 of the FLSA authorizes the Department of Labor to seek a court order forbidding anyone from placing tainted goods into the stream of interstate commerce (a “hot goods order”). Hot goods orders are a powerful remedy against illegal practices that harm low-paid workers who cannot afford to wait to be paid properly. To read more about the hot goods provisions, see our fact sheet.

The Horticulture, Research, Biotechnology, and Foreign Agriculture subcommittee is led by members from farming districts: Chairman Austin Scott (R-GA) and Ranking Member Kurt Schrader (D-OR). Both of these members seem to have a bullseye on farmworkers. Rep. Schrader has introduced two bills to limit farmworkers’ rights to healthcare and labor protections. Rep. Scott has also introduced legislation to defund the Legal Services Corporation just days after the legal services program in Georgia announced that it had assisted an EEOC determination that a Georgia grower in Scott’s district was discriminating against US workers in favor of H-2A agricultural guestworkers.

Rep. Schrader’s vendetta against DOL on behalf of “my” farmers was clear in the many, many, many questions he asked. Many of the questions were related to a 2012 case in which DOL invoked the hot goods provisions against 3 blueberry growers in Oregon for failure to pay the minimum wage to many workers and for violation of child labor laws. Although the cases settled, two of the growers sought to vacate the settlement agreements almost a year later by claiming that their due process rights had been violated and they had been coerced into accepting the settlements due to the threat of a hot goods injunction. A federal district judge overturned the settlement agreements and reopened the case. DOL has requested permission to appeal the decision; the case is still pending.

With the sole exception of Wage and Hour Administrator Weil, the hearing lacked any consideration of the farmworker perspective, including the extensive labor law violations in agriculture or the experiences of the farmworkers in the controversial Oregon cases. Instead, the underlying sympathies and assumptions seemed to be that contrary to widespread statistics, growers are not really violating the law, and thus, are the real victims. There were many questions about how the poor beleaguered farmers will recoup their attorneys’ fees, legal costs, etc.

Of course, not all agricultural employers break the law. In fact, the primary purpose of the hot goods provisions is to protect law-abiding employers from being competitively undermined by unscrupulous employers seeking unfair business advantage by unlawfully lowering their labor costs.

The hearing sent a clear message to the Obama Administration to curtail enforcement of the hot goods provision in agriculture. We urge the DOL to continue to enforce the FLSA hot goods provision to maximize its limited enforcement capabilities, to incentivize compliance with the law, and to ensure that all workers receive their fair day’s pay. Representatives Scott and Schrader have filed a bill, HR 1387, that would exclude perishable agricultural goods from the hot goods provisions of the FLSA. Congress should end the discrimination against farmworkers in our nation’s labor laws, not seek to expand the exclusions.