Inspectors mum on methodology
Last week growers and farm labor contractors meeting with U.S. Department of Labor officials asked them to explain how the DOL determines whether producers are using "ghost workers" -- people who were allegedly unaccounted for in records and aren't paid minimum wages -- and how producers might refute those allegations.
It seems like a reasonable request. Producers want to do the right thing, and protect themselves at the same time. Knowing how the department makes its determinations would make it easier to conform to its rules.
But that's information the department says it doesn't want producers to have. That's a pity.
Last summer teams of labor inspectors visited Oregon blueberry farms during harvest. They pored through employee records and time cards, interviewed workers and documented conditions covered by department regulations. Shortly after, at least three producers were told violations had been found, and that their fruit could be declared "hot goods" under the Fair Labor Standards Act.
A "hot goods" designation means that wholesalers, processors or retailers who buy the crop can be liable for financial penalties. The fruit can't be sold, can't be shipped by commercial carriers, and can't be accepted by commercial cold storage companies.
The farmers were stuck. Had the department obtained an injunction, growers could have waited six months or more for their case to reach the court. By then their crop, and likely their business, would have been ruined. They admitted "guilt," paid their fines and shipped their crops.
But all were left with the feeling they were victims of a government-operated extortion scheme.
It was later revealed that instead of field observations, the department had used a statistical analysis that assumed workers couldn't harvest berries above an arbitrary rate -- a rate much lower than growers say experienced pickers can reach.
When pressed at a meeting last week in Woodburn, Ore., department officials refused to discuss their methods. Tom Silva, assistant district director at the agency, would only say the method varies on a case-by-case basis.
That's not much help for growers who want to comply with the department's Byzantine rules.
Is the department employing an actual standard that can be measured by growers to ensure their compliance, or is it using whatever number produces a violation on any given inspection? Only the Labor Department knows for sure, and it's not saying.
We have repeatedly said that bad actors deserve to be punished. Farm work is hard work, and field hands deserve fair compensation and treatment. We think most producers make a good faith effort to comply with the rules.
We would like to extend the same benefit of the doubt to the Labor Department, though its actions last summer continue to give us pause. It would be a lot easier to believe the department's goal was fostering honest compliance rather than collecting large fines if it was more forthcoming with growers about its methodology.