'Hot goods' tactic must stop
Updated: Friday, October 12, 2012 12:10 PM
We've beat up on the U.S. Department of Labor in this space a couple of times during the last month over the labor law enforcement tactics it has been using on Oregon berry growers.
Our most recent reporting requires that we take yet another shot.
By now the story is familiar. Department investigators show up at a berry farm as harvest is underway. Violations are found, and producers are told that their crops are "hot goods" under provisions of the Fair Labor Standards Act.
The 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. But if the producer pays penalties and signs a consent agreement admitting guilt, the designation can be lifted and the crops sold before they rot.
Producers understandably feel they've been extorted. We agree, more so now that we find some of the violations cooked up against producers are the product of department conjecture that wouldn't pass muster in any legal proceeding.
The department has set arbitrary benchmarks of between 50 and 68 pounds as the maximum amount any single picker could harvest in an hour. If a picker's harvest card records more than that amount, the department assumes more than one picker contributed to the harvest, and the pickers have received hourly wages below the minimum rate.
But a former labor inspector working for the Oregon Farm Bureau and an attorney representing the growers found experienced workers can pick as much as three times the department's benchmark. His time study of 17 workers in a field owned by one of the farms that signed a consent agreement found that hourly blueberry harvest rates ranged from 112 pounds to 196 pounds per employee.
Department officials refuse to discuss how they arrived at their benchmark. We understand that investigators need some benchmark on which to judge the likelihood of violations. But when that benchmark is exceeded, it seems the department should investigate -- actually watch people pick -- to ensure a violation has actually occurred.
The department's methodology is faulty, and wouldn't stand up in court. But it doesn't have to. As long as the department can declare a producer's crop "hot goods" and put him in a desperate financial situation, it's unlikely a case will ever go to a hearing.
Grower organizations are casting a wary eye on the tactics used in Oregon. They are justifiably afraid the department will use its success there as an excuse to use the hot goods gambit elsewhere.
Unless blocked by an administration not anxious for more pre-election ill will, or by Congress, we see no reason the Department of Labor won't coerce more confessions and extort more fines from growers it can put into an impossible situation.