DOL fines three blueberry growers for wage/hour violations
By DON McINTOSH
Associate Editor
More than two years after television
news reporters found children as young
as 5 years old working on blueberry
farms in several states, U.S. Department
of Labor (DOL) agents are cracking
down on violations of the Fair Labor
Standards Act — the 1938 law that sets
the minimum wage, restricts child la-
bor, and requires employers to keep
payroll records and pay overtime. In
August, DOL Wage and Hour investi-
gators found violations at three Oregon
blueberry growers using the growers’
own records.
According to the DOL, growers al-
lowed multiple workers to hand pick
berries on a single employee’s “ticket”
and then paid only one worker the
piece-rate for each pound picked. Addi-
tional workers helped fill the bins, yet
their names never appeared on the em-
ployer’s required payroll records. Un-
der the law, each worker was supposed
to have his or her own ticket, and be
paid at least the minimum wage. One
farm also was found to have violated
the child labor provisions, employing a
child and failing to maintain a record of
the child’s date of birth.
DOL filed complaints, and obtained
consent judgments signed by Oregon
U.S. District Court Judge Michael
Hogan. Under the terms of the judg-
ments, B&G Ditchen Farms of Silver-
ton paid $156,616 in back wages and
damages to 810 employees, plus
$13,200 in civil penalties to DOL. Pan-
American Berry Growers of Salem paid
$41,790 in back wages and damages for
SEPTEMBER 7, 2012
239 employees, and a civil penalty of
$7,040. E&S Farms of Woodburn paid
$11,301 in back wages and liquidated
damages to 52 employees and $10,500
in penalties to the department.
“Growers in the area are fully aware
of their obligation to pay their workers
proper wages and the consequences for
failing to do so,” said Nancy Leppink,
deputy administrator of the Wage and
Hour Division, in a press statement ex-
plaining the enforcement action. “As a
result of the Wage and Hour Division’s
actions, vulnerable workers will receive
the wages they are legally owed and
have worked under grueling conditions
to earn, wages that their families count
on and should have received from the
outset.”
In pursuing the charges, DOL made
use of one of the agency’s most effec-
tive but seldom employed sanctions —
the “hot goods” provision. That provi-
sion prohibits employers from shipping
any goods produced in violation of min-
imum wage, overtime or child labor
standards, and allows the government
to seize the goods until the violations
are remedied.
Growers didn’t like this tactic, and
they reached out to the Oregon Bureau
of Labor and Industries (BOLI). Labor
Commissioner Brad Avakian, whose
job is to enforce Oregon’s even higher
minimum wage law ($8.80 an hour),
wrote a letter Aug. 15 to the Department
of Labor.
“It is the conclusion of the Oregon
Bureau of Labor and Industries (BOLI)
that the seizure of perishable items on
Oregon farms under the hot goods pro-
vision likely violates the constitutional impounded and rot.
But Michael Dale, executive direc-
rights of farmers who have yet to be
found guilty of anything,” Avakian tor of non-profit Northwest Workers
wrote. Avakian complained that the Justice Project, gives a very different ac-
U.S. Labor Department was pursuing count of hot goods. Dale, an attorney,
has repre-
action without con-
sented low-
sidering joint efforts
wage workers
with his agency, and “ ...To begin with, the
for
three
called on them to Depart-ment of Labor
decades, and
immediately cease
using the hot goods investigators, none of them used to direct
the statewide
provision with per- have authority to issue a
migrant legal
ishable goods.
services pro-
Then,
Kurt hot goods order. It’s issued
gram.
Schrader, Oregon’s by a federal district court.
“It’s
a
5th District con-
To get that you have to
strong mecha-
gressman, circulated
nism, let’s be
a somewhat more convince a judge to issue
frank, but it’s
cautious letter to the an injunction, the
not as severe
DOL, which was
and draconian
signed by all mem- equivalent of a temporary
bers of Oregon’s restraining order. And none a remedy as
people are
Congressional dele-
gation except for of the judges that I know in making it out
Earl Blumenauer. this district are pushovers.” to be,” Dale
said. “There’s
The letter expresses
this idea that
concern about the
narrative Oregon farmers presented, and they just come in and slap a hot goods
asks for clarification on how the “hot order and then the crop can’t move and
it’s going to rot, and they have you over
goods” provision is used.
All this came to public attention a barrel and you don’t have any way to
Aug. 30 in a front-page top-of-the-fold defend yourself. That’s all wrong. To
article in the Oregonian — not about begin with, the Department of Labor in-
farmworker abuses in the blueberry vestigators, none of them have authority
fields, but about the farm bureau and to issue a hot goods order. It’s issued by
state officials “blasting” a “heavy- a federal district court. To get that you
handed” federal labor investigation. In have to convince a judge to issue an in-
the article, an agriculture industry junction, the equivalent of a temporary
lawyer characterizes the use of “hot restraining order. And none of the
goods” as extortion, with growers judges that I know in this district are
forced to admit guilt lest their crops be pushovers.”
Dale also said it’s not inappropriate
to use the hot goods provision with a
perishable product, because the way
courts handle it, growers can ship and
sell goods, but the buyer, in lieu of pay-
ing the farmer, pays the court, which
later settles where the money goes.
“The idea that the court is just going
to sit there and watch the blueberries rot
in the warehouse is misguided.”
But Dale had one more thing to add:
“Thank God somebody is paying any
attention to workers not getting paid.
There’s an epidemic of wage theft of
workers in this country right now. and
we need strong remedies and advocates
for working people who are going after
it.”
At the Sept. 3 Labor Day picnic at
Oaks Park in Portland, Avakian was one
of many elected leaders to speak. “In
partnership with you in labor, we’ll see
that Oregon maintains a strong mini-
mum wage, because that’s what builds
middle class families,” he told the labor
audience.
The Labor Press caught up with
Avakian after the speech to ask about
his blueberry letter.
“They’re using this law as a shake-
down in order to get an agreement from
the farmer that they committed a legal
violation before they’ve even finished
their investigation, before anybody’s
been found guilty of anything,” Avakian
told the Labor Press. “Everyone is enti-
tled to due process.”
Avakian said he didn’t speak with
NORTHWEST LABOR PRESS
any farmworkers or advocates before
writing the letter to the Department of
Labor, but he heard from the lawyer for
the growers, and in any case, he said he
knows the law very well.
“The farmers are signing the consent
decrees because they know if they fight
they’ll lose their product,” Avakian said.
“If you don't admit to the violation, you
lose your business. If the law allows for
that kind of, in my opinion, improper
leverage, then it’s an improper use of
the law.”
Avakian said he has no plans to pur-
sue further enforcement of the farms in
question.
“We’re all about protecting the
worker,” Avakian said. “Me opposing
the use of this is not only to protect the
rights of growers. It’s because if you
lose a couple hundred thousand dollars
of crops, your workers are done for the
season, your farm is done. I want to
make sure workers continue to have a
way to make money in the long term.”
Oregon AFL-CIO President Tom
Chamberlain had his own reaction to
the blueberry battle: “Let me get this
straight: They held the blueberries back,
[the growers] did what they should have
done, and they were able to sell the
blueberries. They used enough leverage
to get the workers what they needed. So
what’s the problem?”
Though farmworkers aren’t a big
presence within organized labor, Cham-
berlain has made a point of standing up
for farmworker rights in the Oregon
Legislature.
“When you read it from the workers
perspective, it’s like the federal govern-
ment stepped in and got them what they
were owed,” Chamberlain said. “Thank
God we’ve got a labor secretary who
does her job.”
Barbecue throw down
to benefit Labor’s
Community Services
Madison’s Grill is hosting a Pitmas-
ter Showdown Saturday, Sept. 15, to
benefit Labor’s Community Service
Agency.
Entry fee is $40 and includes three
racks of pork ribs, 10 pound pork loin,
and 10 pounds of chicken. Contestants
supply their own grill and fuel. Up to
10 contestants will compete.
Contestants will be judged in blind
tasting, with the winner receiving a tro-
phy. Bob Tackett, executive secretary-
treasurer of the Northwest Oregon La-
bor Council, will serve as a judge. A
People’s Choice Award also will be
voted on by spectators.
All the food will be sold after the
judging. Cost is $15 — $12 if you
bring two cans of food. Judging starts
at 4:30 p.m. with the barbeque buffet to
follow. Live music begins at 4 p.m. and
will go until 9 p.m.
Madison’s Grill is located at 1109
SE Madison. For more information,
call 503-230-2471.
PAGE 11