Oregon House delegation calls for USDA response on ‘hot goods’ practices

U.S. Rep. Greg Walden, R-Ore., on Tuesday called on U.S. Secretary of Labor Hilda Solis to answer a bipartisan letter from six members of the Oregon Congressional delegation requesting answers on reports of heavy-handed enforcement practices by the Labor Department.

“I rise today to ask Labor Secretary Hilda Solis a simple question on behalf of the farmers of Oregon: When will we get answers about the department’s heavy-handed enforcement tactics?” Rep. Walden said in a speech on the floor of the U.S. House of Representatives.

“Only the Department of Labor can provide these answers to Oregon’s Congressional delegation and the citizens they represent. One hundred and eight days later, we and they still do not have these written answers, and that is unacceptable,” Walden said.

On Aug. 17, 2012, Rep. Walden joined Senators Ron Wyden and Jeff Merkley and Representatives Kurt Schrader, Peter DeFazio and Suzanne Bonamici in writing to Secretary Solis after hearing reports that the Department of Labor had been discarding rights of due process and appeal in using “hot goods” orders to enforce labor laws on farms in the Pacific Northwest.

After 108 days, and repeated follow-up inquiries, the delegation has not received a written response from the Department of Labor.

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Here is the text of the letter:

In the last two weeks, we have received reports about Department of Labor (DOL) activities on Oregon farms which raise significant questions. Specifically, we have been made aware of three issuances of “hot goods” orders (HGO) by DOL to sanction violations of the Fair Labor Standards Act (FLSA) since Aug. 2. Depending on the case, these HGOs can prevent perishable farm products from being shipped off-farm, and effectively shut down harvest activity while the order is in place.

We absolutely do not condone violations of the FLSA. However, in a phone call with Congressman Kurt Schrader and DOL representatives on Monday, Aug. 13, 2012, the DOL asserted that a HGO could only be considered after thorough investigation, due process opportunities for response by the employer, and a finding that the violations were willful, egregious, and/or repeated. Indeed, DOL’s website states that restraining the shipment of goods is to be used after a thorough process:

“When all the fact-finding steps have been completed, the employer and/or the employer’s representative will be told whether violations have occurred and, if so, what the violations are and how to correct them. If back wages are owed, the employer will be asked to pay the back wages and the employer may be asked to compute the amounts due…. In the absence of an employer voluntarily correcting the violations, the Wage and Hour Division may seek to restrain the shipment of the goods.”

We are concerned that our constituents have presented us with a narrative and supporting documentation that indicates that DOL may have abandoned the normal due process mechanisms and remedies in favor of a significant sanction. In one case, a farmer was told that the HGO would only be lifted after a large sum was paid to DOL and after he signed a consent judgment.

The consent judgment included a waiver of any recourse if findings of fact or law later exonerated him. It required a waiver of the right to contest the finding. All this took place before the farmer was ever informed in writing what the alleged violations were.

We are not asking you to address these specific cases and cannot verify their credibility; but rather, we are writing to ask you for additional clarification of DOL procedures and practices for issuing HGOs on agricultural enterprises and enforcing the FLSA, including:

Is it the policy of the DOL to not disclose alleged violations to employers before issuing hot goods orders?

What test or standard is the DOL using to determine the need for a hot goods order?

Why does the DOL ask employers to waive rights for future findings of fact or law in its consent judgments?

What opportunity is there for an employer to respond without having his/her perishable crop under threat?

On farms and elsewhere throughout the economy, DOL serves a vital function in communicating and enforcing rules and laws to protect all working people. Statutes and rules give the Department the tools necessary to apply remedies commensurate with the severity and/or frequency of violations of the law. It is our hope that the fairness and due process provided by law is available to all employers and employees alike.

Please consider this request consistent with all applicable laws and regulations. We thank you for your consideration and look forward to your response.

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