Department of Labor

Obama Administration Big on 'Hot Goods' Orders, Civil Forfeiture for Labor Regulations

Hot goods orders being used by the feds in attack on blueberry growers in the Pacific Northwest.

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One reason for the public outcry over civil forfeiture is its unfairness as a matter of procedure: at a point when you've been convicted of nothing, law enforcement can seize your property and make you sue to get it back. And then if you want to challenge the government's actions, the assets you need for a legal defense may themselves have been seized or frozen. So the pressure is to settle with prosecutors or police on unfavorable terms, perhaps getting back some of your bank account or of the value of your home or car but often without a practical chance to fight the case against you in court.

It isn't just forfeiture law that can give the government this intimidating type of power. Under a provision of the 1938 Fair Labor Standards Act, the U.S. Department of Labor can seek what is known as a "hot goods" order, freezing the physical output of an employer that it suspects of having violated wage and hour law, all without having to prove its case at a trial.

In recent years — urged by such constituencies as labor unions, trial lawyers, and left-leaning academics — the Obama administration has greatly stepped up its enforcement of FLSA wage-hour law. Part of that enforcement has taken the form of a revitalized use of hot-goods orders, which even defenders of its approach concede had until recently been little-known. So far the most notable result has been a federal attack on blueberry growers in the Pacific Northwest — an onslaught high-handed enough to have been met with a stinging rebuke from a federal court last year, and which has now ended in humiliation with the dropping of charges against two growers and a refund of moneys extracted from them.

The case started in 2012 when the Labor Department told three Oregon farms it didn't think the piecework rate system they used, which paid workers for pounds picked, resulted in high enough pay for field workers. Without spelling out exactly how it had arrived at this conclusion — an omission that would raise questions later — it obtained a hot-goods order against them, labeling an estimated $5 million worth of fresh blueberries as contraband forbidden to enter the channels of commerce for supermarket sale, processing, or any other use. And then it offered the growers a deal: if they wanted Washington to release their crop, they would have to not only fork over a demanded cash settlement but — this is the kicker — agree not to appeal.

It's coercive enough to deploy the hot-goods power against a maker of steel ingots or knitted garments. But blueberries are a highly perishable crop that begins to lose value at once if not shipped. Indeed, no one could remember a case until the Obama years in which the hot-goods power had been used against agricultural produce at all, let alone one with a shelf life measured in days.

For the growers, of course, the proffered choice was no choice at all: rather than lose crops worth millions, they took the deal and agreed to pay $240,000. But outrage spread among farm groups, and the Oregon Farm Bureau offered to assist in a court case. The next year two of the growers went to court to challenge what had happened to them and undo the settlement. They told a federal court that the hot-goods order by its nature had prevented them from asserting their legal right to contest the department's wage calculations or even find out what they were. One grower said the government's tactics had amounted to "extortion."

Making matters worse, the growers finally managed to uncover some of the department's methodology in calculating wage underpayment. Here's the Bend (Oregon) Bulletin in an editorial last month:

Do you know how the department determined some of the alleged labor violations? It guessed.

It determined that a picker could pick only a certain amount of blueberries in a day. [Since a larger amount had been picked than the number of reported workers would account for, it deduced that the farms must have used off-the-books time or laborers — W.O.] One farm hired a former Labor Department investigator to test that theory. He had workers pick blueberries on a field that had already been picked, and many picked well over that amount.

It's hard — as in, really, really hard — to get a legal settlement thrown out on grounds of duress. But federal judges nonetheless sided with the growers and ruled that the Department had overstepped its powers. Federal district judge Michael McShane even wrote that the department's conduct constituted "fraud." Meanwhile, the U.S. House of Representatives held a hearing flaying the department over its actions, with Oregon Democrat Kurt Schrader joining Republicans in expressing outrage.

Last month DoL finally folded its hand, dropping the case and agreeing to pay the growers the disputed wage sums as well as $30,000 in compensation, hardly enough to make them whole but enough to dispel any "feds did nothing wrong" spin. But don't credit the department with any real change of heart: as insiders told sympathetic ears in the press, the Senate had flipped to Republican control in the mean time, and the prospect was suddenly very real that Congress might pass legislation to defang the hot-goods power, at least in its use against agriculture. It wanted to stave that off.

Like the civil forfeiture power, the "hot goods" power is ripe for a rollback or better yet outright repeal. Let's hope Congress is up to the task.

NEXT: How Eva Moskowitz Outmuscled the Teachers Union

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  1. Under a provision of the 1938 Fair Labor Standards Act

    Ah, 1938, a great year for progressivism in the US and in Europe.

    1. FDR and progressives everywhere saved us from the scourge of fascism. As (purely by chance!) my t-shirt today says,

      Government: The brilliant idea that we should stop lunatics from lying, murdering, & stealing from us by hiring lunatics to lie, murder & steal from us.

      1. Put it this way. If I could go back in time and kill the most evil tyrant of the 20th Century…it wouldn’t be Hitler.

        1. But, but … it’s always Hitler! Right?

        2. Wilson or FDR?

          1. FDR. Single handedly dismantled American liberty.

        3. I was so incredibly bummed that Reilly’s (the Ace of Spies) assassination of Lenin and coup plot failed. For a brief moment one could contemplate a non-Bolshevik post-czarist Russia. Hard to imagine how much lower the body count of the century might have been.

          1. It’s a pretty day-dream, but the facts remain; Russia has always been badly governed, and whatever sprang up would probably have been murderously awful. OTOH, the Lefty Progressive twits wouldn’t have spent so long running cover for it.

            1. Sure, but murderously awful on a *Russian* scale, not a global one.

              No Warsaw Pact, no invasion of Afghanistan, etc.

        4. You know who else… wait, wut?

  2. It isn’t just that they picked on an industry with a short shelf-life. They picked an industry that’s extremely labor intensive. One of the reasons berries are so expensive relative to other fruits is because they have to be picked by hand. In the Obama Administration’s extreme economic stupidity, they were likely to price berries completely out of the market.

    That’s giving them the benefit of the doubt, actually, because the other likely explanation is that the Labor Department is running interference for the United Farm Workers, or some other union, and they intentionally want to drive independent, nonunionized growers out of the market.

    1. There is some automation going on in the berry business wrt raspberries. However, the farmer has to replant the field to accommodate the harvesting machine. Not cheap.

      Blueberries and strawberries? Labor intensive.

      1. My understanding is that the same sort of thing happened with table grapes during the UFW strikes on grape growers, too.

        It was a labor intensive industry, and then with the labor disruptions, they found ways to grow table grapes in such a uniform way that they could be picked by way automation.

        Now grapes are relatively inexpensive!

        But I think that “Don’t Buy Grapes” campaign is still ongoing, too. What’s it been, 45 years?! Now that the industry is automated, even if they won that battle what would they do? Destroy all the machinery?

        As I recall, the Labor Department was going after farmers for using their own children as labor for a while, too. How’s the UFW supposed to compete with farmers “exploiting” their own children?

        I noticed Hostess is back on my local grocery store shelves.

        “Of the eleven bakeries operated by Old HB, Hostess Brands retained four, in Columbus, Georgia; Emporia, Kansas; Indianapolis and Schiller Park, Illinois.[4] The Schiller Park facility later closed, in October 2014.[5][6]”

        Those striking union members destroyed a perfectly viable business–and ultimately shut down eight bakeries for good. I bet the surviving bakeries are much more automated–and I can’t help but wonder if they’re still unionized.

        Is there anything in our society with more contempt for the proverbial “working man” than the unions?

        1. As I recall, the Labor Department was going after farmers for using their own children as labor for a while, too.

          Every kid who has ever grown up on a farm is laughing their asses off at the idea. Would it really be possible to criminalize “chores”?

          Though when I was 10 I would have *loved* the idea of punishing my parents for making me stand on a hot mountainside in summer getting bit by horseflies while picking huckleberries. *Those* are the real labor intensive berries.

          1. I think using kids as free labor on farms is probably as old as agriculture itself.

            Using your children to help pick berries probably goes back before hunter gatherers migrated out of East Africa some 150,000 years ago.

            But that won’t stop the progressives from using the government to try to stop the practice. …especially if it’s supposed to help the United Farm Workers.

            1. Back then it was the reason to have a bunch of kids.

  3. Say, how’s that “global warming” coming along this weekend, America? Warm enough for all of ya?

    1. You didn’t get the memo? It’s now called “climate change,” and any weather event is evidence of it. Plus, precautionary principle.

      1. Not to put too fine a point on it, kV, but it’s not called global climate change either. It’s now Global Climate Disruption.

        1. disruption. Because snow in February has never happened.

        2. Oh my, that sounds much more serious. Glad to be in the know.

    2. 60s in Montana. MOAR AGW please.

    3. Record high temps here. Worst ski season ever. Ever. Was up at the pass to take a look today, was confronted by fields of green grass where there’s normally feet of snow.

      Oh wait, by “America” you meant that incredibly tiny area called the Northeast?

  4. That kind of logic should be an embarrassment to climate change skeptics, and I have enough regard for the ones who frequent Hit & Run to think that it probably is.

    Not that there’s any reason to change the topic.

    1. Indeed, Ken. It’s a little like saying, “If the economy is so bad, why is the stock market performing so well?”

      1. And God forbid we have a heatwave this summer. If we do, I guess that means the climate alarmists win?

        The climate alarmists use this stuff against us.

        They claim we’re being willfully ignorant science deniers when we say stuff like that guy did, and when their idiot minions make similar claims during the summer, people are so convinced we’re willfully ignorant science deniers, that calling them out on their stupidity doesn’t have much impact with the general public.

        Gotta stop shooting ourselves in the foot. …over and over and over again.

        Again, I don’t care what the science says anywhere near as much as I care that whatever is done about it isn’t socialist and authoritarian. We have to stop playing into their evil clutches.

        Instead of arguing about whether climate change is killing the polar bears, I’m asking how much we’ll need to sacrifice in terms of GDP and our standard of living in order to save the first polar bear from climate change.

        Let the general public chew on the answers to those questions for a while. That’s the way libertarians win.

        1. And God forbid we have a heatwave this summer. If we do, I guess that means the climate alarmists win?

          I recall they were doing that long ago and they predicted the end of snow. I remember when An Inconvenient Truth won the Oscar and the narrator announced how it was inspired by Hurricane Katrina, as if hurricanes never happened before.

          1. http://www.nytimes.com/2014/02……html?_r=0

            Officials canceled two Olympic test events last February in Sochi after several days of temperatures above 60 degrees Fahrenheit and a lack of snowfall had left ski trails bare and brown in spots. That situation led the climatologist Daniel Scott, a professor of global change and tourism at the University of Waterloo in Ontario, to analyze potential venues for future Winter Games. His thought was that with a rise in the average global temperature of more than 7 degrees Fahrenheit possible by 2100, there might not be that many snowy regions left in which to hold the Games. He concluded that of the 19 cities that have hosted the Winter Olympics, as few as 10 might be cold enough by midcentury to host them again. By 2100, that number shrinks to 6.

            1. I know they do the same thing, too–and get away with it.

              That’s not a good reason to keep playing their game. They keep playing that game because they win that game.

              So let’s play our game.

              The worst thing that could happen from a public policy perspective is that we make huge sacrifices of our GNP and standard of living–and it not be enough to solve the problem of climate change.

              So how much in terms of GDP are they suggesting we give up? How much of our standard of living do they want us to give up to save–the very first polar bear that would be saved by our sacrifices?

              Saving the first polar bear would cost us how much in terms of GDP and our standard of living?

              We win that game. Let’s play the games we win. Not the games where using stupid logic makes us look stupid–and pointing out that they’re doing it too doesn’t gain us much of anything.

  5. It should be no surprise that the Thief-in-Chief, whose whole politics is based on robbing Peter to pay Paul, would indulge his kleptocratic tendencies every way he can. That is the essence of modern liberalism.

    1. “and the Gods of the copybook headings,
      With terror and slaughter return.”

  6. Also, while you were all partying last night, an Islamonazi carried out a Charlie Hebdo style terrorist attack in Copenhagen, Denmark, targeting both a free speech event and a synagogue

    Danish intelligence has not released his identity as of yet, but say that he was “on their radar”. Too bad they didn’t do anything about him until it was already too late.

    1. How random.

    2. Danish intelligence has not released his identity as of yet, but say that he was “on their radar”. Too bad they didn’t do anything about him until it was already too late.

      What do you propose would be the appropriate form of pre-crime action?

      Perhaps they could hire Tom Cruise?

      1. Snark aside, I wonder what it’s going to build to in Europe if these sorts of attacks continue to happen. You’d think that at some point people will hit a point where they demand some relief from the threat. I’m sure that the majority of Muslims in Europe want no part of this sort of evil, but the public face of their communities is more and more being defined by religiously motivated killers. I doubt that there are any good answers, and the rising influence of nationalist parties in places like Greece and France is a trend to keep an eye on.

        1. And meanwhile in Germany.

          Police in the German city of Braunschweig cancelled a popular Carnival street parade on Sunday because of fears of an imminent Islamist terror attack.

          Police spokesman Thomas Geese said police received credible information that there was a “concrete threat of an attack with an Islamist background” on Sunday’s parade and therefore called on all visitors to stay at home.

        2. Unfortunately, you’re mistaken in that the majority of Muslims not only condone, but absolutely support these attacks even if they wouldn’t necessarily commit the act themselves.

          1. Unfortunately, you’re mistaken in that the majority of Muslims not only condone, but absolutely support these attacks

            [citation required]

            1. It’s somewhat easy. Just replace the “Muslims in Europe” with the word “Americans” and the following statement seems rather presumptuous on its face:

              I’m sure that the majority of Muslims in Europe want no part of this sort of evil, but the public face of their communities is more and more being defined by religiously motivated killers.

        3. Really? Is it really that bad? How often does a given country have an attack? Anymore than some lunatic, here, shoots up a post office or a school? More than Christians attack abortion clinics? More than are killed in Chicago on any given weekend?

          These are common criminals. Given, they are religiously motivated common criminals, but treating them as some sort of organized national security threat that you can “go to war” with is absurd. You treat them like the criminals they are. You capture, try, convict and punish them based upon their actions. You don’t get to kill innocent muslims just because they happen to worship the same Flying Spaghetti Monster as the criminals.

          1. More than are killed in Chicago on any given weekend?

            This is the second time I’ve seen this comparison and I have some issues with it.

            A terrorist attack (a real terrorist attack) has very different DNA from the types of killings that occur on a Chicago weekend.

            Two gangbangers who know and/or recognize each other is a very different thing than the designed-in random shootings of a terrorist.

            I’m not suggesting that one’s chances of being killed by a terrorist are greater than being a victim of crime in Chicago, but the randomness of any killing or killer is effective in that everyone wonders where he/she/it will strike next.

            It’s why we fear serial killers and make movies about them. They’ll target anyone.

            But G-Money, Hotsauce and Sugarbear are targeting each other because they have a specific beef.

            1. Put it this way… if all the weekend killings in Chicago were like the DC Sniper attacks, it would be CNN’s top news story every night… just like it was in DC– a city where more people were killed… what, every hour than the DC sniper killed in total?

              1. if all the weekend killings in Chicago were like the DC Sniper attacks, it would be CNN’s top news story every night

                And therein lies my point. Treating these events like they are something beyond (above?, more important?) than everyday crime, gives them credibility, and more importantly (to them) attention to their cause.

                Terrorism can’t work if people refuse to be scared and ignore it. The fear is irrational and induced by the media and government (those who stand to gain from it). Terrorist power is an illusion. If you stand a bigger chance of being caught in the crossfire of rival gangbangers, why would you fear a terrorist more?

                Again, it’s irrational. And it’d be nice to have someone in the media or government or anywhere, for that matter, point such out.

                1. Again, it’s irrational. And it’d be nice to have someone in the media or government or anywhere, for that matter, point such out.

                  The statistical rationality of it has been pointed out here on Reason plenty. I think anyone here pretty much knows your chance of being killed in a terrorist attack is less than being struck by lightning.

                  But there is a seed of rationality in the fear of purely random killings vs. the standard criminal fare where the victims (often) know each other.

          2. I’m just going to go ahead and assume you misunderstood the character of my post.

            Really? Is it really that bad? How often does a given country have an attack? Anymore than some lunatic, here, shoots up a post office or a school?

            a) More than zero and enough to frighten people and induce people to change their behavior, which is kind of the point. Also, some of those attacks have been quite deadly, others are like what we’ve just seen recently. Both sorts have had an effect on people. The rise in anti-Jew attacks and harassment has been on the rise, as well.

            b) I was talking about Europe, not the US

            More than Christians attack abortion clinics? More than are killed in Chicago on any given weekend?

            a) Abortion clinics? Really?

            b) Still talking about Europe. Chicago has no bearing on what I wrote.

            but treating them as some sort of organized national security threat that you can “go to war” with is absurd.

            Totally agree, and nowhere did I state that they are a “national security threat.”

            You don’t get to kill innocent muslims just because they happen to worship the same Flying Spaghetti Monster as the criminals.

            Who the fuck is suggesting that? Beside Cytotoxic maybe.

            1. Yeah, sorry, upon reading your post again, I took it wrong. Thanks for keeping me straight.

              1. No biggie, it happens.

          3. More than Christians attack abortion clinics?

            Yes, way more often than that, Obama junior.

            You forgot to bring up the Crusades, but other than that I think you nailed pretty much every Muslim apologist talking point.

    3. the Tsarnaev brothers were “on our radar” prior to the Boston bombings but absent any action, you can’t round folks up for thinking bad thoughts.

      Be nice is places like Denmark copied Jordan and responded in kind. Or the Chamberlains of our time can pretend that Islamists can be reasoned and bargained with, that they feel pity or remorse or something resembling human thought.

      1. The Denmark gunmen escaped in a VW Polo. You think they maybe saw this ad?

      2. the Tsarnaev brothers were “on our radar” prior to the Boston bombings but absent any action, you can’t round folks up for thinking bad thoughts.

        The SPLC disagrees.

      3. the Tsarnaev brothers were “on our radar” prior to the Boston bombings but absent any action, you can’t round folks up for thinking bad thoughts.

        Not only that, but the radar is probably pretty damn crowded at any given time.

        It’s like the people who blamed Bush for 9/11 because he received a report about a similar possible threat sometime in the preceding months…. probably buried among thousands of others.

      4. The problem with your analogy is one of the Tsarnaev’s actually already killed someone according to a witness, and the police response was “well, it’s too much work so we’ll get him after he does something else.”

    4. Quick, draw up specs for a bigger, more expensive radar!!11!!

    5. Europe wouldn’t be having all these shootings if they would only get their guns under control. I mean, when Europeans can just walk into Wal-Mart and buy an assault weapon with no background check, what do you expect? They should have magazine limits, bans on military-style assault weapons, and background checks. Such common-sense measures would put an end to these attacks.

      /prog

  7. OT for blueberries, semi-OT for the Copenhagen thing:

    Associated Press has a story about Saudi Arabia condemning the killing of the Muslim graduate students in Chapel Hill.

    The idea of Saudi Arabia condemning anyone for killing struck me as quite funny.

    1. I really don’t understand the angst over this.

      Does the Arab World imagine we don’t prosecute Americans for murdering Muslims? Some of them must be assuming that we act like they do.

      I’d understand the criticism if the police had refused to arrest the suspect. I’d understand the criticism if Hicks had been allowed to go free. I’d understand the criticism if Hicks weren’t being charged with a crime.

      But Hicks is being charged with three counts of First Degree Murder! What more do you want?

      I had a girlfriend once that used to complain about things she was worried about–as if they had actually happened. If she was worried that I might do something, she would get just as upset about it as she would if I had actually done it. At first I found it amusing.

      After a while, not so much.

      1. Off her meds?

        1. Nah, she was just young, and wealthy,and smokin’ hot.

          When they’re that smokin’, they don’t get much negative feedback. They live in a magical world where everyone is friendly, and they always get what they want.

          My grandfather was a minister, and he wanted me to be a minister, too. He used to take me with him to visit people in the hospital. I probably talked to more than a hundred dying people by the time I was 14.

          When you’re in your ’80s and laying on your death bed, trust me, you’re never gonna think to yourself, “I am so glad I never had to tangle with any smokin’ hot, crazy as hell chicks”.

          There are downsides, no doubt. But it’s something you want to do at some point in your life.

      2. I had a girlfriend once that used to complain about things she was worried about–as if they had actually happened. If she was worried that I might do something, she would get just as upset about it as she would if I had actually done it. At first I found it amusing.

        She sounds nuts.

        Man I bet she was hot.

      3. I really don’t understand the handwringing over this one. The police found the guy and he is going to be tried for murder. People are complaining that the police didn’t scream “HATE CRIME” at the top of their lungs as soon as the attack was made public.

      4. They’re condemning the killing, not condemning America in general.

        Libya is attempting to prosecute people for the Benghazi killings of our ambassador and others, does that mean we can’t condemn the killings?

        1. “They’re condemning the killing, not condemning America in general.”

          My read (from ’round the interwebs) is that there are two things going on here:

          1) There are Muslims throughout North Africa and the Middle East who do not think this crime will be prosecuted unless they demand it

          For many of these people, Sharia is synonymous with justice. For them, it’s almost equivalent to when Hammurabi first wrote the laws down for everyone to see. In their historical memory, when there is no Sharia–there is no rule of law. And in their cultural experience, justice is whatever suits the authoritarians in power if it isn’t based on the rule of law–which they equate with Sharia.

          In other words, because our legal system isn’t based on Sharia, they don’t think the American justice system will prosecute people for murdering Muslims. They genuinely have no clue how things work over here.

          2) They’re pointing to this as an example of the fact that “terrorism” isn’t just isolated to Muslims. They’re screaming about this because it’s finally an example of an American non-Muslim victimizing a Muslim with terrorism.

          …take both of those in turn, and it is a condemnation of America in general–or at least, it’s a condemnation of the boogeyman America that exists in their minds.

          1. They’re screaming about this because it’s finally an example of an American non-Muslim victimizing a Muslim with terrorism.

            Except that it isn’t. Murdering your neighbors because you don’t like them parking in front of your house is absolutely horrendous, and should be unequivocally condemned and prosecuted to the fullest extent of the law. But I’m afraid it’s not terrorism.

            Terrorism is violence intended to achieve specific political goals. A parking dispute doesn’t remotely qualify by any logical train of thought.

            1. Well, I’m not saying they’re right in what they’re saying.

              I’m saying that seems to be what’s behind what I’m reading–right or wrong.

              They’re certainly not outraged because this man wasn’t arrested or charged.

              He was arrested. He is being charged.

        2. Condemning killing is about as stupid as advocating breathing.

  8. Did somebody say Blueberry?

    1. That’s not the link for blueberry!

      This is the link for blueberry:

      https://www.youtube.com/watch?v=Z4_cf_fZDc0

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  10. 60s in Montana. MOAR AGW please.

    Really? It’s snowing at my house right now.

    However, it has been so mild for the past few weeks, the fucking gophers have come out. We definitely need some more snow.

    1. Yeah, it cooled down last night again. 64 day before yesterday and 50 yesterday.

    2. Weather isn’t climate.

      1. Except when it is convenient.

  11. Snark aside, I wonder what it’s going to build to in Europe if these sorts of attacks continue to happen.

    Go back and look at the British campaign against the IRA. I suspect that’s the model.

    1. Yeah but you could easily identify the Irish by their accent.

      1. What would Daniel Day-Lewis say?

  12. Speaking of domestic terrorism

    John Boehner, the Republican U.S. House of Representatives speaker, said he is willing to let funding for the Department of Homeland Security lapse as part of a Republican push to roll back President Barack Obama’s executive actions on immigration.

    Those evil Republikkkans are going to get us all kilt!

  13. Weather isn’t climate.

    That’s nice.

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