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EPA fails again to protect children from pesticide drift

Earlier this week, EPA announced their response to a lawsuit pressing them to better protect children from health-harming pesticides that drift from fields in rural areas. Meeting a legal deadline, the agency acknowledged “children may experience higher levels of pesticide exposure relative to their size than do adults," and that EPA had failed to consider drift by a 2006 deadline under the Food Quality Protection Act, but they declined to make any significant changes to their current plans, insisting that the current approach to addressing and regulating pesticides drift is good enough. Farmworker and environmental advocacy groups that filed the original petition firmly disagree.

"We are deeply disappointed with this complete non-response from EPA," says Kristin Schafer, Program & Policy Director for Pesticide Action Network, one of the plaintiffs in the suit. "The agency is completely disregarding the urgency of the risks these pesticides are posing, every day, to children's health."

The insecticide chlorpyrifos clearly illustrates the problem with EPA's assertion that current rules are adequately protective. Recent science has shown that even low levels of exposure to the chemical can harm children's developing brains and nervous system – and drift of the pesticide into homes and schools in rural areas is well documented. Under EPA's current regulations, this new science will be considered in the chemical review to be completed in several more years.

"We know kids are particularly vulnerable to pesticides in the first seven years of life," says Erik Nicholson, National Vice-President of the United Farm Workers, another plaintiff in the case. "EPA's refusal to act means another entire generation of children will be exposed to harmful pesticides – this is both unnecessary and unacceptable. And farmworker children currently bear and will bear the heaviest burden."

Studies show that farmworker children are not only exposed to pesticides that drift in the air and contaminate the water in rural areas, they also face exposure from residues of the chemicals brought into the home on their parents work clothes and skin.
"It is unconscionable that EPA forces citizens to go to court just to get a response to a valid petition to protect kids and then, after five years, says ‘eh, good enough’. EPA failed kids in the first instance and now says it’s okay to allow that state of affairs to continue for another decade or so, " says Janette Brimmer of Earthjustice, who filed the suit on behalf of the plaintiffs in the case. "We’re evaluating any and all options to make sure that the nation’s children are protected from neurotoxic pesticides.”

Farmworker and public health advocates filed the lawsuit in July, seeking an answer to a petition that the advocates filed with the agency in 2009, urging EPA to set safety standards protecting children who grow up near farms from the harmful effects of pesticide drift. The original petition urged EPA to evaluate the impacts of pesticides on children and adopt interim prohibitions near places where children congregate. In their formal response to plaintiffs, officials refused to take any additional steps to establish protections.

“Five years later and EPA is no closer to protecting children from hazardous pesticide drift,” Virginia Ruiz, an attorney with Farmworker Justice, also representing plaintiffs in the lawsuit. “It’s time for the Agency to take a stand for children’s health.”

New Agribusiness Report Correctly Calls for Immigration Reform But Contains Flawed Analysis

The American Coalition for Immigration Reform and the Partnership for a New American Economy, a bipartisan pro-immigration reform group of mayors and business leaders, released a report on Tuesday, “No Longer Home Grown: How Labor Shortages are Increasing America’s Reliance on Imported Fresh Produce and Slowing U.S. Economic Growth.” The report argues that an agricultural labor shortage has led to lost U.S. agricultural revenue and that Congress should pass immigration reform to provide agricultural employers with a new agricultural guestworker program. The report contends that domestic production of fresh fruits and vegetables has not kept up with increased consumer demand for fresh fruits and vegetables, and concludes that a major factor holding back domestic fruit and vegetable production is a farm labor shortage. The report acknowledges the role that growing international trade and free trade agreements have played in the increase in imports of fresh fruits and vegetables. The report states that the H-2A guestworker program is too expensive and unworkable for many growers and that “few U.S. workers are willing to work on fresh produce farms due to the seasonal, temporary, and arduous nature of the work.”

While Farmworker Justice strongly agrees that there is an urgent need for immigration reform in agriculture and that immigration reform will be good for the U.S. economy, we disagree with some of the points in the report. The need for corrections and clarifications in the report does not conflict with the conclusion that Congress should move forward to enact immigration reform, including the agricultural stakeholder agreement in the Senate-passed immigration bill, S. 744, and its counterpart in the House, H.R. 15. The House should end its delay in addressing the broken immigration system.

There is, without question, a shortage of farmworkers in the U.S. who are authorized under our immigration laws to work in this country. But there are hundreds of thousands of experienced, hard-working undocumented farmworkers who farmers depend on to labor in their fields cultivating and harvesting our fruits and vegetables. Their hard work can be recognized through immigration reform that affords them the opportunity to legalize their status, begin a path to citizenship, and continue their work and contributions to their communities without fear of deportation. Immigration reform would address employer concerns of worker shortages by helping ensure that there are adequate numbers of qualified farmworkers.

There are additional factors at play. Wages and working conditions in agriculture are often quite poor, contributing to the high turnover in the agricultural labor force. Many farmworkers are paid at the state or federal minimum wage, fringe benefits are rare, and violations of employment laws are rampant. The trend of many growers to use farm labor contractors to hire and supervise farmworkers— often in an effort to avoid the labor and immigration law obligations of “employers”—has further destabilized the workforce. Improving job terms and treating farmworkers with a greater measure of respect would help reduce turnover and increase productivity. In agricultural communities in California such as Bakersfield, Delano, and Fresno, unemployment rates are still in the double-digits. Agricultural employers must do more to attract and retain workers.

It is true that the U.S. has increased its imports of fruits and vegetables as a percentage of produce consumption, but much of the reason is the increased demand by consumers for produce at all times of the year and for a great variety of produce. Growers of fruits and vegetables in the U.S. overall have increased their production due to consumers’ increased interest in healthy food. In fact, in recent years, agriculture annually breaks a new record high in the value of agricultural production that is exported to other countries. Still, farmworker advocates would welcome expansion of the fresh fruit and vegetable sector to bring safe, healthy food to consumers in the U.S. and abroad and to provide good jobs here in this country.

The kind of jobs that are created in the U.S. matters. Proposals such as Rep. Goodlatte’s “Agricultural Guestworker Act,” which would create a massive new agricultural guestworker program that would drive down wages and displace the current farm labor force, both documented and undocumented, are not valid solutions.

The new report criticizes the current H-2A agricultural guestworker program from the employer point of view. We note that the program offers agricultural employers the opportunity to request an unlimited number of temporary work visas per year. If there were truly a need for large numbers of additional farmworkers in the U.S., the employers could take advantage of the program, and some have done so. In recent years, the H-2A program has seen a large expansion: from about 48,000 worker positions certified in FY 2005 to about 99,000 worker positions certified in FY 2013—an increase of over 100%. And several states saw significantly large increases in program usage over the last year, such as an increase of 109% in North Carolina, 49% in Washington, 46% in California, and 45% in Florida. Some growers have used the program for decades and have successfully grown their businesses. Farmworker advocates generally view the program as inherently exploitative and insufficiently monitored by the government agencies that oversee it.

Despite these differences in perspectives among employers and farmworker advocates, there is widespread agreement that our immigration system is broken and that modifying the H-2A program should not be the only solution to address the need for agricultural labor. That is why employers, the United Farm Workers, and a bipartisan group of members of Congress engaged in difficult negotiations to reach a bipartisan agricultural stakeholder agreement that would create a new agricultural guestworker program for future labor needs and an earned legalization program for the current undocumented and guestworker labor force. Farmworker Justice supports that compromise as a responsible effort to resolve intense conflicts over farm labor policy.

Unfortunately, while the report does recommend immigration reform and specifically mentions the stakeholder agreement’s new guestworker program, it does not reference the path to legalization for current undocumented farmworkers. The agricultural stakeholder agreement provides a practical solution that includes hard concessions and balances many interests. The stakeholder agreement’s path to permanent legal status and the opportunity to earn citizenship would help stabilize the current farm labor force, benefitting employers, farmworkers, and consumers. For farmworkers, this would mean a greater ability to challenge unfair or illegal employment practices and to move freely in the agricultural labor market and their communities without fear of immigration enforcement. We all want a prosperous agricultural sector in this country and reasonable policy decisions on immigration policy can help us achieve that goal.

Farmworker Justice’s Statement on the HEAL Immigrant Women & Families Act

Farmworker Justice applauds Rep. Michelle Lujan Grisham’s (NM) introduction of The Health Equity & Access under the Law (HEAL) for Immigrant Women & Families Act. The HEAL Immigrant Women & Families Act would reduce barriers to accessing healthcare for certain immigrant populations.

The HEAL Immigrant Women and Families Act restores access to Medicaid and the Children’s Health Insurance Program (CHIP) for all lawfully present immigrants who are otherwise eligible, by eliminating the five-year bar on enrollment and the outdated, restrictive list of “qualified" immigrants, established in 1996. It would also allow DREAMers who participate in the Deferred Action for Childhood Arrivals program (DACA) to fully participate in the Affordable Care Act. Like other Americans, these young people pay taxes to support healthcare programs and it makes no sense to deny them coverage.

Farmworkers are particularly impacted by immigration-status restrictions on access to health care. The vast majority of farmworkers, around 70%, are immigrants. Most farmworkers have low incomes, no health insurance, and limited access to health care, making them particularly vulnerable to environmental and occupational health hazards. While there is little nationwide data, the information available shows lower health outcomes for farmworkers and their children, including elevated infant mortality rates, shorter life expectancy, and higher rates of infectious disease, tuberculosis, parasitic infection, and diarrhea than the national average.

According to 2010 – 2012 National Agricultural Worker Survey data, only 31% of farmworkers have health insurance and only 16% of farmworkers receive employer-provided insurance. The HEAL Immigrant Women & Families Act would help many hard-working immigrants, including farmworkers and their family members, have greater access to quality healthcare.

The House has Time to Attack DACA While Ignoring Urgent Need for Immigration Reform

Instead of taking up comprehensive immigration reform, the House is choosing to focus its time on attacking the President’s executive authority to enforce the laws, which includes a specific censure of the Deferred Action for Childhood Arrivals (DACA) program. Yesterday, the House passed the Faithful Execution of the Law Act of 2014, H.R. 3973, which would require the Attorney General to submit a report to Congress of any instance in which a federal officer issues a formal or informal policy to refrain from enforcing a law. The House Judiciary Committee report lists DACA as example of the President’s “failure to enforce the law.”

On Wednesday, the House of Representatives passed another piece of legislation attacking the President’s authority to prioritize enforcement of the nation’s laws: H.R. 4138, the Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law (ENFORCE the Law) Act of 2014. The ENFORCE Act raises serious constitutionality concerns as it may violate the Constitution’s separation of powers by allowing Congress to sue the President when it believes that the President is failing to enforce the law.

The ENFORCE Act seeks to limit the President’s executive authority to enforce laws, including actions such as prosecutorial discretion for immigration enforcement. The House Judiciary Committee report on the ENFORCE Act also specifically points to the DACA program as an example of the President’s misuse of his power of prosecutorial discretion. Quite the opposite is true. By providing new American immigrants the opportunity to obtain work permits and a reprieve from deportation, DACA has proven to be a prudent and just exercise of the President’s authority to enforce our immigration laws. The majority of Americans and the majority of Members of Congress agree that it would be impractical and immoral to deport the 11 million undocumented immigrants who contribute to our communities. Roughly one million of these immigrants are farmworkers who do some of the hardest work in this country to bring food to our tables. In the absence of action from the House to create a workable immigration process, President Obama should expand his use of executive authority to stop deporting hard-working, law-abiding individuals. It makes little sense to spend millions of dollars and inflict great harm on families and communities by deporting individuals who would be eligible for legalization under the Senate’s comprehensive immigration reform bill or similar legislation.

Instead of multiple votes to repeal the Affordable Care Act and attack DACA, the House should focus on fixing our broken immigration system. Last summer, by a large bipartisan majority, the Senate passed a comprehensive immigration reform bill, S. 744, that includes a path to citizenship for the 11 million undocumented immigrants in this country and an agricultural stakeholder agreement. In the House, similar bipartisan legislation, H.R. 15, would offer a sensible solution to our broken immigration system. With significant support in Congress and the American public for immigration reform, House leadership should work to fix our broken immigration system. The time is now to move forward with immigration reform legislation.

New Safeguards Seek to Protect Farmworkers from Pesticides

The EPA today proposed strengthening the Worker Protection Standard, which has not been updated in more than twenty years, to address many agricultural pesticide safety concerns.

The federal Worker Protection Standard, first adopted by the U.S. Environmental Protection Agency in 1992, is notoriously difficult to enforce, and does not require record-keeping to document whether rules have actually been followed. It requires only minimal training on the risks that pesticide exposure can pose to workers’ children and families, so many workers don’t find out about those hazards until after the worst has happened. Additionally, it was designed with only adult workers in mind, but agriculture is different from most other industries in that it allows children to join labor crews at 12 years old – even at 10 in some crops – and these children are exposed to pesticides on the job.

“Each year pesticide exposure poisons tens of thousands of the men, women and children who harvest our food, yet regulations to protect these vital workers have not been updated to address this growing problem,” said Virginia Ruiz, Director of Occupational and Environmental Health for Farmworker Justice. “These injuries, illnesses, and deaths are preventable, and we urge the EPA to implement stronger protections as soon as possible.”

An estimated 1.1 billion pounds of pesticides are applied to crops annually in the United States. The nation’s 2 to 2.4 million farmworkers face the greatest threat from the health impacts of these chemicals. Ten to twenty thousand farmworkers are injured by pesticides on the job every year in the US. Short-term effects of pesticide exposures can include skin and eye injuries, nausea, headaches, respiratory problems, and even death. Long-term exposure on the job can increase the risk of serious chronic health problems such as cancer, birth defects, neurological impairments and Parkinson’s disease for farmworkers, their families, and their children.

“We appreciate the EPA moving forward on this very important issue of stronger worker protections regarding toxic pesticides. We will review the proposed changes to evaluate their effectiveness in reducing pesticide poisoning of the people who harvest our food and their family members,” said Bruce Goldstein, President of Farmworker Justice. “We, and other farmworker advocacy groups, will comment on the proposal and mobilize the public to show broad public support for stronger protections.”

Last week 52 members of Congress, led by Rep. Raúl Grijalva of Arizona and Linda Sanchez of California, urged EPA Administrator Gina McCarthy in a letter to release the proposed rule, stating that the current agricultural worker protection standard is "limited" and "insufficient" to protect workers from the hazards of handling pesticides. The same week, California-based Pesticide Action Network submitted a petition to McCarthy to strengthen the Worker Protection Standard, signed by more than 18,000 citizens.

The proposed revisions to the Worker Protection Standard can be viewed on the EPA’s website. The revisions will also be posted in the Federal Register in March, at which time the EPA will begin accepting comments from the public for 90 days.

To learn more about the harm caused by pesticide exposure, click here to read Farmworker Justice’s report Exposed and Ignored: How Pesticides are Endangering Our Nation’s Farmworkers.

House Republican Immigration Principles Are a Step Forward, But Still Incomplete

The House Republicans’ immigration reform principles are an encouraging step forward in the necessary process to address a broken immigration system. But they mistakenly neglect the importance of opening up a path for hard-working immigrant families already in this country to become full participants in their communities and our country through citizenship.

The best way to ensure a strong and stable work force for American agriculture is through legal protection on the job and in communities for the roughly one million undocumented farmworkers already here and on the job. Our country benefits when its workers and their families are fully engaged in civic life.

“We are encouraged that the House is taking a preliminary step to address the immigration crisis in our country; however, the House GOP’s approach falls short of what is needed for 11 million people already living and working in our country,” said Bruce Goldstein, President of Farmworker Justice. “Our country will be stronger if hard-working members of our society are covered by labor laws and able to fully participate in civic life as citizens.”

Last year, the United Farm Workers and a coalition of agricultural employers negotiated for months, with the support of a bipartisan group of Senators, eventually reaching a tough-but-fair agricultural stakeholder immigration agreement. That compromise establishes a roadmap for undocumented farmworkers and their children to earn legal permanent residency and apply for citizenship if they meet a series of qualifications. Farmworker Justice urges the House and the President to consider the importance of that roadmap as they continue to address immigration reform.

“The men and women who labor under difficult and dangerous conditions to put food on our tables deserve a balanced and fair response to the immigration crisis in our country. We urge the House, Senate, and President Obama to continue working towards much-needed immigration reform,” said Goldstein.

Farmworker Organizations Applaud Progress on Updating Weak Worker Protections

Farmworkers and their advocates welcomed news that the U.S. Environmental Protection Agency will soon propose revisions to the Worker Protection Standard (WPS), which provides minimal workplace protections against pesticide exposures for farmworkers. A coalition of farmworker, public health, and other non-partisan organizations has long urged the EPA to include stronger protections for farmworkers in the WPS.

It has been more than 20 years since these rules have been updated and the EPA has admitted for more than a decade that the standards are inadequate. Following a recently completed review by the Office of Management and Budget, advocates expect the EPA will publish the proposed rule for public comment in the next few weeks. Advocates would like the updated rules to include improved safety training requirements, safety precautions limiting farmworkers’ contact with pesticides, and mechanisms to improve enforcement of workplace protections.

An estimated 1.1 billion pounds of pesticides are applied to crops annually in the United States with our nation’s 1–2 million farmworkers facing the highest threat from the health impacts of these chemicals. The federal government estimates that there are 10,000–20,000 acute pesticide poisonings among workers in the agricultural industry annually. Short-term effects of pesticide exposures include stinging eyes, rashes, blisters, nausea, headaches, respiratory problems, and even death. Cumulative long-term exposures can increase the risk of serious chronic health problems such as cancer, birth defects, neurological impairments and Parkinson’s disease for farmworkers, their families, and their children.

Earthjustice and Farmworker Justice submitted a petition to the EPA in November 2011, on behalf of United Farm Workers, Farm Labor Organizing Committee (FLOC), The Farmworker Association of Florida, Inc., PCUN (Pineros y Campesinos Unidos del Noroeste, or Northwest Treeplanters and Farmworkers United), Farm Worker Pesticide Project (FWPP), California Rural Legal Assistance Foundation (CRLAF), and the Pesticide Action Network North America (PANNA), urging it to strengthen the outdated and weak WPS.
“While most Americans benefit from broad workplace protections, farmworkers are fundamentally disadvantaged and face dangerous exposure to poisons over the course of their working life,” said Eve Gartner, attorney for Earthjustice, a public interest law firm. “We urge the EPA to offer farmworkers a more protective safeguard.”

“Each year pesticide exposure poisons tens of thousands of farmworkers and their families, leading to injury, illness, and death,” said Virginia Ruiz, Director of Occupational and Environmental Health at Farmworker Justice. “We applaud the administration for taking this step to help protect the men, women and children who labor to put food on our tables. We hope that the EPA’s revised Worker Protection Standard will include important safeguards for farmworkers and strengthen their right to a safe workplace.”

“Farmworkers have waited long enough,” said Tirso Moreno, General Coordinator of the Farmworker Association of Florida. “Every day without stronger regulations is a day where a farmworker risks short and long term health effects from workplace pesticide exposure. The time is now. Farmworkers need improved WPS standards.”
“The nation’s 2 million farmworkers deserve the level of workplace protections provided to other workers,” said Dr. Margaret Reeves, Senior Scientist with PANNA. “Protections for workers from pesticide exposure also means protection for farmworker children and families.”

Fall/Winter 2013 Newsetter now available: Keep up with the latest farmworker developments

Learn how Farmworker Justice helps farmworkers improve their living and working conditions. Highlights include: Immigration Reform Update: Committed Until Reform becomes a Reality Victory for Farmworkers: Remedying Systematic Labor Abuses Confronted by Farmworkers Farmworker Justice Announces New Health Initiative : Conexiones The Affordable Care Act and Farmworkers: Educating Communities Protecting Farmworkers from the Dangers of … Read more Fall/Winter 2013 Newsetter now available: Keep up with the latest farmworker developments

New Report Outlines History of AWPA, Farmworkers’ Poor Conditions and Recommendations for Achieving the Law’s Goals

Thirty years after passage of the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA” or “MSPA”), a new report issued today says the law has proven critically important to preventing wage theft and dangerous working and living conditions for many farmworkers across the country. However, the report by Farmworker Justice calls for enhanced labor protections in the law and regulations and for stronger enforcement by the Department of Labor.

“Unfinished Harvest: Agricultural Worker Protection Act at 30,” says the 1983 law, enacted in response to previous legislation’s failure to achieve equity and sufficient protection for migrant workers, has proven beneficial to farmworkers. The law requires agricultural employers to disclose and comply with job terms, regulates the use of farm labor contractors – who are notorious for labor abuses – and contains safety standards for some housing and transportation vehicles.

Congressman George Miller said: “This report by Farmworker Justice is timely and a must-read for policymakers. While AWPA has helped remedy and prevent wage theft, farm labor contracting abuses, unsafe transportation and unhealthy housing, there is much more to be done. Because our immigration system is broken, the majority of farmworkers lack authorized immigration status, and most are too afraid to step forward to challenge illegal employment practices. Unscrupulous employers need to be weeded out, and abused workers need greater access to the justice system and immigration. The working people who sow and harvest our food every season should be treated with dignity and respect.”

However, many farmworkers continue to experience wage theft, and dangerous housing and transportation. Many factors contribute to this reality, notably our broken immigration system and farmworkers’ limited access to attorneys, but many problems can be addressed in the short term through stronger enforcement of AWPA and in the longer term through improvements to the law. To address systemic abuses, the Department of Labor should emphasize holding farm operators jointly responsible with their farm labor contractors for violations of labor protections.

“The AWPA’s enactment was an important step forward,” said Bruce Goldstein, President of Farmworker Justice, “but the wages and working conditions for most of the workers who cultivate and harvest our fruits and vegetables are still inadequate. To reduce serious abuses that harm farmworkers and undermine the agricultural sector of our economy, there are improvements that should be made in AWPA’s enforcement, in the regulations issued to implement the law, and to the law itself.”

The Hill OpEd: Don’t weaken labor law’s ‘hot goods’ provision

Migrant farmworkers, particularly hand-harvest laborers, are frequently paid less than the minimum wage. Many growers rely on shady farm labor contractors to recruit workers, and then assert that the farm labor contractor – not the grower – is the employer, and therefore solely responsible for paying the minimum wage.

In other situations, the grower pays a piece rate – a fixed amount per bucket or tray of goods harvested – that is too low for one worker to be able to earn the $7.25 per hour federal minimum wage. Many workers are forced to rely on their children for help, frequently with the grower’s knowledge, to meet their production quota and earn the minimum wage. The children are paid nothing. Over half of hand-harvesters are undocumented workers who are fearful of trying to assert their rights, and frequently are not even aware of them.

Meanwhile, some members of Congress are working to weaken a powerful enforcement mechanism to protect these workers’ rights. Reps Kurt Schrader (D-OR), Suzanne Bonamici (D-OR), Doc Hastings (R-WA), Cathy McMorris Rodgers (R-WA) and Austin Scott (R-GA), have introduced legislation, for example, that would wall off all perishable crops from “hot goods” enforcement.

The U.S. Department of Labor sometimes, has relied on the so-called “hot goods” provision in the federal minimum wage law, to request a federal court order barring not only the employer who has paid less than the minimum wage, but also any other businesses (such as packing sheds or food brokers) that have possession of the goods, from shipping those goods in interstate commerce. The Labor Department has asked the courts for a hot goods order in agriculture about 20 times in the last 11 years to stop these violations, only 2 percent of all FLSA cases filed by the Labor Department during that period.

Why would Congress pass a law that includes such a drastic remedy that applies to all goods, including perishable produce such as blueberries and cherries? Why would the Labor Department seek such a remedy? And wouldn’t the remedy, by preventing shipment of the goods, disrupt the businesses and cause the perishable produce, and perhaps other kinds of goods as well, to become worthless?

The answers to these three questions show, first, that Congress knew what it was doing in passing the law; second, that the Labor Department seeks the remedy in limited circumstances; and, third, that the courts – which alone can issue an emergency order – use their discretion to fashion an order tailored to the specific situation, so that the employees get the back wages they are due and the goods can be sold and shipped in interstate commerce.

Congress passed the hot goods provision to prevent unfair competition by barring goods produced or handled by underpaid workers from entering the flow of interstate commerce. The Supreme Court, in upholding the hot goods provision, made clear that the power of Congress to regulate the interstate flow of goods was not limited to explosives, poisons, and other goods that posed an immediate danger, but applied to all goods. The Supreme Court later ruled that the hot goods provision is “not simply a means to enforce” other goals of the Fair Labor Standards Act (such as the minimum wage), but instead a “central purpose” of the FLSA.

In most hot goods cases, prompt action is essential because otherwise there are no assurances that the underpaid employees will be paid the wages due to them and that the grower will comply with the law in the future. A court order achieves these assurances. Migrant farmworkers move from place to place to do their jobs, so it is critical to distribute back wages due to them as soon as possible. In the absence of a court order, even where an employer agrees to pay back wages, the workers may be difficult to locate.

Only a federal court has the power to issue an emergency order, and to specify conditions and limitations. The Labor Department is willing to agree to an order permitting shipment of the fruit or other goods if the employer and other businesses agree that the proceeds will go to the employees to pay them the back wages they are due, and if the court order includes provisions that assure that there will not be future minimum wage violations.

The employer and other defendants in the lawsuit are free to oppose in court what the Labor Department proposes. But courts usually agree with the Labor Department’s approach, because the assurance of back wage payment means that the goods are no longer “hot” and can thus be sold and shipped. The result is a win-win situation for all parties to the lawsuit.

–James B. Leonard, a retired attorney, handled various FLSA hot goods cases during his 22-year career with the U.S. Department of Labor.