“In late July, investigators with the U.S. Department of Labor visited three blueberry farms in Marion County and announced finding “widespread” record-keeping and minimum wage violations at each.
Farm labor law investigations are often contentious, especially involving fruit pickers working on a “piece rate” basis rather than an hourly wage. But these cases took an unusual turn as the labor department’s Wage and Hour Division staff in Portland dropped the hammer.
In a move Oregon’s congressional delegation and the Oregon Farm Bureau say was unprecedented and deeply unfair, the department invoked a “hot goods” provision of labor law that prohibited shipment of the berries. Labor officials also notified wholesalers that berries from the farms would be subject to the order and should not be processed or shipped.
Suddenly, the growers were stuck holding perishable berries worth hundreds of thousands of dollars. The labor department offered a way out: Pay a fine and back wages and sign a consent judgment admitting wrong and agreeing not to contest the order even if subsequent information exonerated the farms.
Greg Ditchen, a third-generation Silverton farmer whose B&G Ditchen Farm paid the $169,816 in back wages and penalties, called the department’s action “extortion.” Half his crop was at risk and there was no time to offer a defense or pursue other legal options.
“They put a hot goods order on our fruit, and after they had the money they said we had to sign a paper saying we were wrong,” Ditchen said. “We had to make a business decision and sign the paper.”
A second farm, E&S Farms Inc. of Woodburn, paid $11,301 in back wages and a $10,500 penalty. Earlier this month, the Department of Labor said Pan-American Berry Growers of Salem signed a consent order to pay $41,778 in back wages and a $7,040 civil penalty.
A retired federal Wage and Hour Division investigator who reviewed two of the cases for an attorney representing the farmers said the agency’s action was hasty and alarmingly incomplete.
“They put a noose around the neck of these farmers right off. That is not what Wage and Hour is about,” said Manuel Lopez of Eugene, who was a labor investigator for 27 years.
Oregon officials are furious. The state’s labor commissioner, agriculture director and most of the state’s congressional delegation asked the labor department to explain its action.
Labor Commissioner Brad Avakian was the most direct. In an Aug. 15 letter to the federal agency, he said seizing perishable crops probably violates the constitutional search and seizure and due process rights of farmers “who have yet to be found guilty of anything.”
Avakian asked the department to immediately cease using the “hot goods” provision, which refers to a clause in the 1938 Fair Labor Standards Act originally intended to halt abuses in the garment industry.
Avakian said the department should use an enforcement tool that “does not result in irreparable harm prior to full investigation and a fair process of adjudication.”…”