An Attack on the Enforcement of the Minimum Wage

A recent article in the Oregonian featured attacks on the U.S. Department of Labor (DOL) for bringing a lawsuit against three blueberry growers that resulted in settlements of back pay of tens of thousands of dollars to farmworkers.  The criticism claimed that the DOL was heavy-handed and anti-business.  It’s time to clear things up.

Under the Fair Labor Standards Act of 1938 (FLSA), an employer must pay the federal minimum wage.  The law authorizes the Secretary of Labor to ask a federal court to enter an order, called an injunction, that stops the shipment, delivery, or sale across state lines of goods that have been produced by employees who were not paid the minimum wage.  These goods are referred to as “hot goods” because they are tainted by the labor violations, which pollute the channels of interstate commerce.  It’s a powerful remedy against illegal practices that harm low-paid workers who rarely can afford to wait to be paid properly.

The settlements came after DOL investigators found that the employers were only documenting some of their workers’ wages.  The work of other “shadow” workers was not being accounted for on in the records. According to DOL’s court documents, which lists out the names of the shadow workers and the amounts they are owed, B & G Ditchen Farms owes $156,616.00 in back wages, which it agreed to pay along with a $13,200.00 penalty.  E&S Farms Inc. and Pan-American Berry Growers have promised to pay $11,301 in back wages and a $10,500 penalty, and $41,778 in back wages and a $7,040 civil penalty, respectively.  

Now the employers are crying foul and have enlisted the Farm Bureau and state government employees in a campaign to stop DOL from using the hot goods provision in agriculture.  The Oregonian article quotes allegations by Oregon’s Department of Labor that the U.S. DOL’s seizure of “perishable crops probably violates the constitutional search and seizure and due process rights of farmers,” yet it fails to mention the words “judge” or “court order” once.  Instead, the article implies that DOL seized the growers’ blueberries with little or no proof that the employers had violated FLSA. 

In reality, DOL cannot seize or restrain shipment of goods without seeking a court order from a judge.  In order for to get a court to issue a Temporary Restraining Order or Preliminary Injunction, it must show a certain level of proof, including that it is likely to succeed in its underlying case.  Additionally, the court will weigh the interests of DOL and the workers it is seeking to compensate against the interests of the employer when deciding whether such an order is just.  Notably, in previous “hot goods” cases, courts have not been insensitive to concerns that the goods may spoil and they have allowed the goods to be sold and the proceeds of the sale to be held by the court until the case is resolved. 

Wage theft and other labor law violations are rampant and persistent problems in agriculture. Despite the article’s assertion to the contrary, ensuring that workers are not paid less than the $7.25 an hour required by FLSA is not complicated.  It’s probable that the workers on these farms, like most farmworkers, are struggling to get by on incomes below the poverty line.  DOL’s decision to request a “hot goods” injunction from a court can prevent the victims of wage theft from incurring additional harm caused by a long wait for their rightfully earned wages.  In Weeding Out Abuses: Recommendations for a law-abiding farm labor system, Farmworker Justice and Oxfam America advocated for DOL’s increased use of the hot goods provision.  We are pleased the DOL is using this powerful tool to send a strong and desperately needed message to employers to obey the law.