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‘Ghost workers’ elude Labor Department

Mateusz Perkowski

Capital Press

Only a small fraction of workers who were allegedly underpaid by Oregon blueberry farmers have been located by the U.S. Labor Department, which threatened to block shipments of their crops in 2012 under the "hot goods" provision of federal labor law.

The U.S. Labor Department has failed to identify the vast majority of “ghost workers” that were allegedly underpaid by several Oregon blueberry growers.

Despite extensive search efforts, only 21 of the approximately 1,000 workers who were allegedly paid less than minimum wage in 2012 have been located, according to an agency document.

The lack of substantiated “ghost workers” bolsters the view of critics, who doubted the DOL’s claims of egregious violations that required a threatened “hot goods” order halting crop shipments.

“It’s troubling the department knew throughout these public outreaches how few people they were finding, and yet they won’t budge and admit there’s anything unusual or ineffective about their tactics,” said Dave Dillon, executive vice president of the Oregon Farm Bureau.

In 2012, three Oregon farms paid the agency about $210,000 in alleged “back wages” owed to workers who weren’t paid the minimum hourly rate.

Those payments, plus additional penalties, settled claims by the Labor Department that the farms had violated federal labor laws.

The agency also agreed not to invoke the “hot goods” provision of labor law, under which it can block shipments of unlawfully produced goods.

Farmer advocates were outraged by the deal, claiming the growers were coerced into payments to avoid having their blueberry crops spoil.

Two of the farms fought to overturn the deals in court. A federal magistrate judge recently ruled the consent decrees were signed under economic duress and should be vacated.

Apart from the controversy over due process rights, questions have remained about how the DOL determined the farmers violated minimum wage law.

The agency claimed many piece-rate tickets — which are used to tally each picker’s harvest amounts — actually represented two or more workers.

The funds collected from farmers were intended to compensate more than 1,000 of these underpaid “ghost workers,” with any leftover money turned over to the U.S. Treasury after three years.

The Oregon Farm Bureau was dissatisfied with the basis for DOL’s ghost worker accusations and filed a Freedom of Information Act request for the information.

The agency refused to turn over the records, which prompted the bureau to file a lawsuit over the dispute last year.

“We’re just trying to peel back the layers,” said Dillon.

DOL has since released some documents due to the litigation.

Roughly nine months after the investigations, the agency only located 21 alleged ghost workers who have been paid about $22,000, according to a DOL document.

Capital Press was unable to reach the agency for comment as of press time.

FOIA documents indicate the DOL tried to find alleged ghost workers through churches, the Mexican consulate, posters, interviews, letters and Spanish-language radio ads, Dillon said.

“They really scoured the countryside,” he said.

DOL officials had direct access to workers during its investigations and the agency said it would act quickly to find ghost workers, Dillon said.

In light of these factors, the meager number of alleged ghost workers identified by the agency raises doubts about its allegations, he said.

The choice faced by farmers — pay up or lose your crop — was especially “horrific” since the evidence against them was so thin, Dillon said.

“It just amplifies the importance of making sure this doesn’t happen again,” he said.

During a meeting with farmers and labor contractors in 2013, officials from the Labor Department refused to explain their procedure for determining minimum wage violations.

In a court document, the agency said the method relied on a “statistical analysis of harvest amounts.”

The Oregon Farm Bureau and other critics suspected the agency assumed highly effective pickers actually represented two or more ghost workers.

Documents released due to the FOIA litigation seem to confirm these suspicions.

The agency determined that pickers who harvested more than 55.5 pounds per hour were assisted by one or more ghost workers, according to an email sent among agency officials.

Under this method, “an additional non-ticketed worker was added for every 37 pounds above 55.5” pounds.

In other words, a worker who reported picking more than 55.5 pounds but below 92.5 pounds was assumed to have one additional ghost worker.

A picker who reported more than 92.5 pounds per hour but less than 129.5 pounds had two additional ghost workers, and so on.

The 55.5 pound and 37 pound amounts used in the calculations were based on piece-rate tickets collected at a farm as well as interviews with workers, the email said.

Field trials conducted by a former DOL investigator found that workers can generally pick much higher amounts, said Dillon.

It would be more logical for the agency to base its minimum wage allegations on direct observation, rather than statistical modeling, he said.

Dillon said he hopes to glean more information from the FOIA documents, such as how DOL verified that the 21 “ghost workers” were actually employed by the farmers.

“This isn’t a capstone. This is a first cursory glance through these documents,” he said.



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