Mr. Speaker, following is the letter I referred to earlier today. Congress of the United States, Washington, DC, August 17, 2012. Hon. Hilda L. Solis, Secretary, U.S. Department of Labor, Washington, DC. Dear Madam Secretary: In the last…
Mr. Speaker, following is the letter I referred to earlier today.
Congress of the United States,
Washington, DC, August 17, 2012.
Hon. Hilda L. Solis,
Secretary, U.S. Department of Labor,
Washington, DC.
Dear Madam Secretary: 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 August 2nd.
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, August 13th, 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 Oregon farmers 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.
Sincerely,
Kurt Schrader.
Peter DeFazio.
Ron Wyden.
Greg Walden.
Jeff Merkley.
Suzanne Bonamici.