Don’t weaken labor law’s ‘hot goods’ provision

Migrant farmworkers, particularly hand-harvest laborers, are frequently paid less than the minimum wage. Many growers rely on shady farm labor contractors to recruit workers and then assert that the farm labor contractor — not the grower — is the employer, who is therefore solely responsible for paying at or above the minimum wage.

In other situations, the grower pays a piece rate — a fixed amount per bucket or tray of goods harvested — that is too low for one worker to be able to earn the $7.25 per hour federal minimum wage. Many workers are forced to rely on their children for help, frequently with the grower’s knowledge, to meet their production quota and earn the minimum wage. The children are paid nothing. More than half of hand-harvesters are undocumented workers who are fearful of trying to assert their rights, and frequently are not even aware of them.


Meanwhile, some members of Congress are working to weaken a powerful enforcement mechanism to protect these workers’ rights. Reps. Kurt Schrader (D-Ore.), Suzanne BonamiciSuzanne Marie BonamiciPelosi heading to Madrid for UN climate change convention Scientists join Democrats in panning EPA's 'secret science' rule Overnight Energy: Democrats call for Ross to resign over report he threatened NOAA officials | Commerce denies report | Documents detail plan to decentralize BLM | Lawmakers demand answers on bee-killing pesticide MORE (D-Ore.), Doc HastingsRichard (Doc) Norman HastingsCongress just resolved a 20-year debate over Neolithic remains Boehner hires new press secretary GOP plots new course on Endangered Species Act reform MORE (R-Wash.), Cathy McMorris RodgersCathy McMorris RodgersKoch network could target almost 200 races in 2020, official says Lawmakers voice skepticism over Facebook's deepfake ban House Ethics Committee finds McMorris Rodgers misused official resources MORE (R-Wash.) and Austin Scott (R-Ga.), have introduced legislation, for example, that would wall off all perishable crops from so-called “hot goods” enforcement.

The Department of Labor sometimes has relied on the hot-goods provision in the federal minimum wage law to request a federal court order barring not only the employer who has paid less than the minimum wage, but also any other businesses — such as packing sheds or food brokers — that have possession of those goods from shipping them in interstate commerce. The Labor Department has asked the courts for a hot-goods order in agriculture about 20 times in the last 11 years to stop these violations, which make up only about 2 percent of all Fair Labor Standards Act (FLSA) cases filed by the Labor Department during that period.

Why would Congress pass a law that includes such a drastic remedy that applies to all goods, including perishable produce such as blueberries and cherries? Why would the Labor Department seek such a remedy? And wouldn’t the remedy, by preventing shipment of the goods, disrupt businesses and cause the perishable produce, and perhaps other kinds of goods as well, to become worthless?

The answers to these three questions show, first, that Congress knew what it was doing in passing the law; second, that the Labor Department seeks the remedy in limited circumstances; and, third, that the courts — which alone can issue an emergency order — use their discretion to fashion an order tailored to the specific situation, so that the employees get the back wages they are due and the goods can be sold and shipped in interstate commerce. 

Congress passed the hot-goods provision to prevent unfair competition by barring goods produced or handled by underpaid workers from entering the flow of interstate commerce. The Supreme Court, in upholding the hot-goods provision, made clear that the power of Congress to regulate the interstate flow of goods was not limited to explosives, poisons and other goods that posed an immediate danger, but applied to all goods.

The Supreme Court later ruled that the hot-goods provision is “not simply a means to enforce” other goals of the FLSA, such as the minimum wage, but is instead a “central purpose” of it.

In most hot-goods cases, prompt action is essential because otherwise, there are no assurances that the underpaid employees would be paid the wages due to them and that the grower would comply with the law in the future. A court order achieves these assurances. 

Migrant farmworkers move from place to place to do their jobs, so it is critical to distribute back wages due to them as soon as possible. In the absence of a court order, even where an employer agrees to pay back wages, the workers can be difficult to locate.

Only a federal court has the power to issue an emergency order, and to specify conditions and limitations. The Labor Department is willing to agree to an order permitting shipment of fruits or other goods if the employer and other businesses agree that the proceeds will go to the employees to pay them the back wages they are due, and if the court order includes provisions that assure that there would not be future minimum wage violations. 

The employer and other defendants in the lawsuit are free to oppose in court what the Labor Department proposes. But courts usually agree with the Labor Department’s approach, because the assurance of back wage payment means that the goods are no longer “hot” and can thus be sold and shipped. The result is a win-win situation for all parties to the lawsuit. 

Leonard, a retired attorney, handled various FLSA hot-goods cases during his 22-year career with the Department of Labor.