News Article Type: Press Room

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.  

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

This Miami Herald op-ed by labor historian Peter Cole argues against depriving agricultural workers of an important tool to enforce the minimum wage under the Fair Labor Standards Act of 1938. The U.S. Department of Labor may request a court to issue an injunction to stop the sale or shipment of goods produced in violation of the minimum wage, overtime, or child labor requirements. There are efforts in Congress to exclude agricultural workers from this protection; in addition a proposed Farm Bill would require the Labor Department to consult with the US Department of Agriculture regarding such "hot goods" injunctions; there is no valid justification for discriminating against farmworkers in this way regarding law enforcement. — Bruce Goldstein, Farmworker Justice.

 Anyone care to return to the days of child labor? How about the times when employers did not have to pay a minimum wage or overtime? Assuming the answer is “no,” there is another, more obscure, portion of that same landmark federal law, the Fair Labor Standards Act (FLSA), that is at risk from large agricultural employers who do not want the government to use its power to ensure that minimum wages are paid to farmworkers.

Since 1938, the U.S. Department of Labor (DOL) has had the authority to investigate and remedy FLSA violations. When an employer is found to have engaged in wage theft or child labor, the DOL may ask a federal court to issue a ruling — called a “hot goods” injunction — to stop the shipment, delivery or sale of goods produced through such illegal means, until the employer complies with the law.

Thousands of Florida employees have benefitted from the protections in this enforcement tool. In 2010, the U.S. Department of Labor secured $173,000 in back wages for 153 South Florida citrus workers whose employers either missed payroll or failed to pay required overtime. The year prior, 49 employees of Miami-based Hoover Industries received $44,000 in back wages after the DOL intervened. Now this powerful, but fair, enforcement tool is under attack.

I’ve been told never to insult a farmer when your mouth is full. But many “farmers” today are corporate managers who never get their hands dirty. Florida agriculture produces about $9 billion in agricultural products a year, among the highest in the United States. It’s critical to the state economy. But the actual, hard work of planting, tending and harvesting food crops across the country is done by about 2 million men and women, mostly immigrants who get paid poorly.

Farmworkers are excluded from most labor protections and routinely find themselves exploited, not getting paid or paid the full amount they are owed. The real money is made by large corporations. We consumers contribute to this system because we want cheap food.

Some agribusinesses now want to erode one of the most important protections that farmworkers do have: the “hot goods” injunction that can force employers to live up to their obligation to pay the minimum wage. Unscrupulous employers hate this remedy because it can be so effective in getting workers paid fully and promptly; some have been agitating in the media, Congress, and the Obama administration to stop the Department of Labor from using it.

A provision in the farm bill now under consideration in the House of Representatives would require the DOL to “consult” with the U.S. Department of Agriculture about hot-goods injunctions. Traditionally USDA has been perceived as biased toward agricultural employers. Even more troubling is another House bill that would remove perishable agricultural commodities entirely from the provision for hot-goods injunctions.

There were good and noble reasons that the Roosevelt administration and Congress pushed for the passage of the FLSA. In explaining its importance FDR said, “Only goods which have been produced under conditions that meet the minimum standards of free labor shall be admitted into interstate commerce;” and that, “Goods produced under conditions which do not meet rudimentary standards of decency should be regarded as contraband and ought not to be allowed to pollute the channels of interstate commerce.”

The Fair Labor Standards Act was a product of compromises: in exchange for support among Southern Democrats who did not want any laws that protected the then largely African-American farm workforce, farmworkers were exempted from most of the protections afforded other workers. Not until years later were some federal protections, including the minimum wage, extended to them.

Most Americans take for granted that workers have basic protections on the job. As corporations become ever stronger, it comes as no surprise that some seek to eviscerate laws that limit their power and profits, like the hot-goods provision. Those of us who want the government to continue to be able to enforce the law need to oppose the below-the-radar efforts of agri-business lobbyists to have their allies in Congress strip away one of the few protections for farmworkers.

If we were to return to using child labor, employers would reduce their costs, but that is now considered unjust. So, too, should be the rampant exploitation of some of the most vulnerable workers in America. If you’re reading this piece while eating breakfast, it’s all the more reason to support the folks who make it possible.

Miami native Peter Cole is a professor of history at Western Illinois University, who specializes in 20th-century U.S. labor history. He is the author of Wobblies on the Waterfront: Interracial Unionism in Progressive-Era Philadelphia.

Read moreMiami Herald OpEd: Don’t weaken fair labor standards

Citizenship path

Regarding "Do something!" (A modest fix before immigration reform), the editorial correctly admits that comprehensive immigration reform is the only way to truly solve the labor problems that we face in agriculture, but it fails to sufficiently address the underlying flaws with any guestworker program, including the one you applaud in Canada.

Canada's seasonal agricultural workers program, which has its share of labor abuses, may provide a higher quality of life for its farmworkers than current systems in place in our country, but any program that lacks a fair path to citizenship will continue to disadvantage both growers and farmworkers.

Growers will inevitably continue to experience labor shortages, while farmworkers will still be left without full protections of their rights.

U.S. workers suffer, too, as these programs incentivize employers to hire vulnerable and easily exploited guestworkers at below-market wage rates, rather than Americans and other legal workers willing to do the jobs. As the editorial suggests, for a system to be viable, all parties involved must find the program workable. This is exactly what the Senate has produced – a tough compromise between growers and workers that acknowledges that the measures included would benefit both parties as well as consumers. That is the reform we all should be advocating.

The U.S. House of Representatives needs to act now.

Read moreCitizenship path: Letter to the Editor in Houston Chronicle