Mateusz Perkowski/Capital Press
The U.S. Labor Department claims that agriculture has an “abysmal compliance record” with labor laws, with “about half of employers” violating rules aimed at protecting workers.
The agency refers to “systemic problems” in Northwest agriculture — particularly in berry fields harvested by hand — in explaining why the “hot goods” provision was invoked against several Oregon farms last year, according to recently filed court documents.
The “hot goods” provision prohibits companies from shipping goods produced or harvested in violation of labor laws. In 2012, it was invoked against three Oregon blueberry growers who then settled with the agency for $230,000 rather than have their fruit spoil.
Two of those farms — Pan-American Berry Growers and B&G Ditchen — have asked a federal court to reverse those agreements because they say they were coerced into signing them.
The Labor Department has now filed court documents opposing the farmers’ arguments in which the agency said it “chose to focus some of its limited enforcement resources on berry growers in Washington and Oregon” because field workers are “frequently the victims of wage theft.”
Dave Dillon, executive vice president of the Oregon Farm Bureau, said he disagreed with the Labor Department’s characterization of widespread noncompliance with labor laws in agriculture.
“I don’t see that as being the case,” he said. “I’m not sure what facts bear that out.”
Growers associated with the Oregon Farm Bureau are encouraged to know and follow labor laws, but the rules are prone to changes and the Labor Department’s enforcement priorities can vary by administration, Dillon said.
According to the Labor Department, the “high non-compliance rates in the Pacific Northwest” stems from the use of farm labor contractors, including unregistered contractors, as well as migrant families traveling from California with small children.
“When the migrant parents were asked why they preferred to work in the Pacific Northwest, they stated because farmers here allow our children to work and they do not in California,” said Ruben Lugo, regional agricultural enforcement coordinator for the agency, in a court declaration.
Growers in the region also pay “flat piece-rates” that allows “multiple workers to work under one name,” thus “causing enormous record-keeping and wage violations and encourages the use of child labor,” he said.
The Labor Department launched an initiative in 2011 aimed at field workers who pick berries and aren’t paid sufficient minimum or overtime wages, said Richard Longo, regional director of enforcement for the agency’s Wage and Hour Division, in a court declaration.
Inspectors found that many employers “permitted or encouraged multiple agricultural workers to pick their crops using a single form or “ticket” for recording the weight of crops picked, since the minors employed were below the minimum wage of employment and not present on the employer’s payroll records,” Longo said.
The process leads to “the systematic under payment of those workers,” he said.
The Labor Department’s findings in 2011 led inspectors to continue investigating berry farms the following year and caused them to uncover violations at Pan-American Berry Growers and B&G Ditchen, according to the agency’s court documents.
The argument that the farmers acted under economic duress is inaccurate and doesn’t provide a legal basis for overturning the settlements, the agency said.
The farms also shouldn’t be allowed to vacate the consent decrees because they have waited too long after signing them, the agency said.
By signing the deals, the growers caused the Labor Department to close investigations that had “disclosed serious and sweeping violations” but would be “nearly impossible” to restart at this point, the agency said.
“That defendant believes it would make a different choice today does not relieve it of the terms of the agreement and from which it has already accepted the benefits of its bargain,” the document said.
The agency now seems to see enforcement as a higher priority than education, said Dillon of the Oregon Farm Bureau.
The approach has been a failure because growers don’t know what is expected of them, Dillon said. For example, the agency indicated that pickers with high harvest rates represented more than one “ghost worker,” but hasn’t made that methodology clear to farmers.
“What they’ve laid out is there is no safe harbor,” he said. “I think they’ve just created a lot of confusion.”