“Hot goods” update
Berry farmers seek to rescind ‘hot goods’ settlements, by Mateusz Perkowsk, Capital Press, August 20, 2013
Oregon berry farms allege U.S. Labor Department coerced them into wage settlements, by Eric Mortensen, The Oregonian, August 15, 2013
> Article excerpt: “ Two Oregon blueberry farms forced to pay fines and admit labor law violations last summer have filed suit against the U.S. Department of Labor, alleging that the government’s action was coercive and denied them due process.
The lawsuit alleges the farms signed consent orders and paid fines totalling about $220,000 because their perishable blueberry crops were at risk. Labor investigators invoked a “hot goods” provision of labor law that prohibited shipment of the berries, and notified wholesalers that berries from the farms should not be processed.
Faced with possibility of berries spoiling, Pan-American Berry Growers of Salem and B&G Ditchen of Silverton allege they had no choice but to pay back wages and fines, admit wrong and agree not to contest the orders even if they were later exonerated.
The labor department “held the proverbial gun” to the farms’ heads and forced them to choose between letting berries rot or agreeing to the settlement, the lawsuit alleges. One farmer, Gregg Ditchen, described the action as “extortion.”
The lawsuit, filed Thursday in U.S. District Court in by Portland attorneys Tim Bernasek and Brian Talcott, asks the court to rescind the orders and reimburse the farms — $50,000 to Pan-American and nearly $170,000 to B&G Ditchen….” Full story
No ‘hot goods’ orders yet this season in Oregon, Capital Press article, July 27, 2013
Labor Department uses ‘hot goods’ provision against Washington farm, Capital Press article, July 30, 2013
USDOL squeezes farms again in Washington, Capital Press Editorial, Aug. 9, 2013
Federal Agency Hides Too Much, Capital Press editorial, June 14, 2013
On April 29, 2013, Oregon Farm Bureau, the state’s largest family agriculture organization, filed suit in U.S. District Court in Portland in response to the U.S. Department of Labor’s (USDOL) refusal to comply with the federal Freedom of Information Act (FOIA). In the filing, Farm Bureau seeks public records about USDOL’s use of “hot goods” powers. Filing this lawsuit is Farm Bureau’s only option after USDOL failed to meet its deadline to respond to an April 23, 2013 appeal. The department had 20 business days to comply with the law and failed do so.
On March 21, 2013, Oregon Congressman Kurt Schrader submitted bill HR 1387, “To amend the Fair Labor Standards Act of 1938 to exempt certain perishable agricultural commodities from the goods whose sale or distribution in commerce may be prohibited subsequent to a violation of such Act.”
During the 2013 Oregon State Legislative Session, the Senate passed Senate Joint Memorial (SJM 7), which would, “…require the United States Department of Labor to adopt standard rules and procedures for the application of the ‘hot goods’ provision of the Fair Labor Standards Act.” OFB President Barry Bushue testified alongside farmers Zach Krahmer and Jay Hoffman in committee to help get this passed.
For months prior, documents and public outcry accrued regarding the U.S. Dept. of Labor’s inexplicable use of the “hot goods” order in Oregon.
To recap: Farm Bureau members were slapped with severe hot goods orders, embargoing their fresh blueberries until large fines were paid (in one case, nearly $170,000) and declarations of guilt were signed — even before the alleged labor violations were identified to the farmers and without any due process of law by USDOL. (Read more about what happened here.)
It has been MONTHS since Oregon’s congressional delegation asked for an explanation on Aug. 17. But USDOL told Reps. Kurt Schrader and Greg Walden that it needed a “couple more weeks” to defend what it took only hours to do to farm families and their employees.
As of today, we’re still waiting for an explanation from USDOL.
If US DOL has contacted your farm in recent weeks threatening a “hot goods” embargo on your crops, please contact Farm Bureau immediately. Email Shawn Cleave at Shawn Cleave.
Media coverage of the “hot goods” scandal:
Board of Ag protests ‘hot goods’ tactic, Capital Press, Sept. 26, 2012
‘Hot goods’ compensation in doubt, Capital Press, Sept. 13, 2012
‘Hot goods’ tactic must stop , Capital Press Editorial, Sept. 13, 2012
On Aug. 31, 2012, OFB responded strongly to a USDOL press release on its actions targeting blueberry growers with a draconian “hot goods order.” The release sparked commentary by the Oregonian Editorial Board hours later.
‘Hot goods’ orders amount to overregulation, experts say, Capital Press, Aug. 21, 2012
Farm bureau and state officials blast ‘heavy handed’ federal labor investigations, The Oregonian front-page story, Aug. 30, 2012
Federal crackdown goes too far, Bend Bulletin Editorial Board, Aug. 19, 2012
An offer that growers can’t refuse, Capital Press Editorial Board, Aug. 17, 2012
U.S. Department of Labor Consent Decree, August 2012
USDOL demanded payment of nearly $170,000 in this case and a signature on this judgment before it would lift the “hot goods” designation which prevented the farm’s customers from receiving any product during harvest.
The document is greatly detailed in its long list of penalties and remedies. The detailed allegations that underpin USDOL’s heavy-handed overreach however will, “Be supplied at a later date.”
That later date is after the document was to be signed and the enormous sum to be paid.
The farmer’s choice was to fight back while his fresh blueberries rotted. Admit guilt to undisclosed violations and pay $170,000, or let your berries rot and got out of business.
There is nothing voluntary, just, or due-process oriented about this so-called choice. These tactics were used on at least three Oregon farms in August, and tried on at least one other before DOL realized it did not have jurisdiction (only after scaring a farmer’s family with threats while on-farm).
In the case of the farm in this decree, the family has never had any US DOL violations of any kind before. They are a well-known farm, and good operators, yet they were treated like fly-by-night repeat offenders.
- PDF Page 1, paragraph 2: DOL will only lift “hot goods” objection to shipment if the decree is signed. “You must sign…”
- PDF Page 2, paragraph 1: By signing the consent judgment, the farmer must waive due process, waive any defense to the complaint, and waive further “findings of fact and conclusions of law.”
- PDF Page 3-4: USDOL alleges $156,616 in wages and damages (p.3), based on details provided in “Exhibit A” (p. 4).
- PDF Page 4: “Check payable to U.S. Department of labor.” USDOL later, in a late Labor Day Friday press release, incorrectly stated that the farm paid, “back wages and liquidated damages directly to 810 employees.” DOL received the money, and has not distributed a single dollar to any employee, real or imagined.
- PDF Page 10: Exnibit A, the lynchpin for the entire complaint, and the only chance the farmer has to know the detailed allegations he is responding to says, in its entirety: “This information to be supplied at a later date.” Somewhere, George Orwell is stirring in his grave.