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Constitution missing from DOL’s argument

The U.S Department of Labor tries to defend its use of the "hot goods" designation on blueberries.

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Lawyers for the U.S. Department of Labor say it’s OK to threaten farmers with their livelihood and force them to pay hundreds of thousands of dollars even though they have had no opportunity to defend themselves.

Not only is that OK, it’s the way the department should operate, they say.

That’s the gist of a recent court filing in which DOL lawyers say the agency’s inspectors did nothing wrong in using a “hot goods” designation on fresh blueberry crops.

In 2012, DOL inspectors accused three growers of paying farmworkers less than minimum wage. According to their calculus, anyone picking more than 55.5 pounds of berries an hour was using a second “ghost worker” to supplement his work. That’s despite evidence that good workers can pick more berries by themselves.

The DOL went to the farmers and told them to sign a consent agreement and pay $240,000 or they couldn’t sell their crops.

Though DOL alleged upwards of 1,000 ghost workers may have been picking at the three farms, it found a grand total of 21 by contacting churches and the Mexican consulate and using posters, interviews, letters and Spanish-language radio ads, according to documents obtained by the Oregon Farm Bureau through a freedom of information request.

Despite that, what DOL did was all perfectly OK, according to its lawyers.

“Moreover, a party’s threat to do what it has a lawful right to do may not constitute economic duress,” DOL said.

What the DOL is arguing is its inspectors can show up at any farm and slap a hot goods order on a crop if they believe any wage and hour laws have been violated. That crop cannot be sold until a consent agreement has been signed and a fine has been paid. And that’s OK, even if the farmer never gets a chance to appeal.

Importantly ­— the United States of America, at least — the blueberry farmers were denied due process. As is specified in the 5th and 14th amendments to the U.S. Constitution, no one shall “be deprived of life, liberty, or property, without due process of law.”

In this hot goods case, the outcome was the governmental equivalent of extortion. The farmers were told to sign the consent agreements and pay the Department of Labor or their crops would rot.

And the DOL’s lawyers say that’s OK.

What they miss is what everyone else, including the judge who heard the case, seems to get. Despite the Department of Labor’s best efforts, the Constitution still has meaning.



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