[Congressional Record Volume 158, Number 164 (Wednesday, December 19, 2012)]
[Extensions of Remarks]
[Page E1951]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             DEPARTMENT OF LABOR ACTIVITIES ON OREGON FARMS

                                 ______
                                 

                            HON. GREG WALDEN

                               of oregon

                    in the house of representatives

                       Tuesday, December 18, 2012

  Mr. WALDEN. 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.

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