L & I Record Fine Out of Line

  • November 30, 2018

Why was the Sumas berry farm assessed the largest fine ever for late rest breaks and meals?

The Department of Labor & Industries’ admits assessing a record fine was influenced by “publicity”

The Department of Labor & Industries’ record fine of a Sumas berry farm for rest break and meal violations sends a troubling message: justice depends at least to some degree on how much noise your opponents make. That’s essentially what this story in the Capital Press reveals.

The record potential fine including court costs of $150,000 for missed rest breaks and late meals is unprecedented. Following accusations by activists of late or missed meals and rest breaks, the Department conducted an in-depth investigation including worker interviews and examination of payroll and timecard records supplied by the farm. This was the third investigation by the Department. The first investigated claims by activists that the tragic death of a worker was caused by the farm management and the second that workers became ill due to pesticide exposure. The farm was fully exonerated with the investigators supporting the Medical Examiner’s conclusion that the death was due to natural causes related to the man’s diabetes condition. The pesticide investigation also determined that the claims of workers regarding pesticide exposure were not supported by the facts. The third investigation into meal and rest break violations resulted in 13 violations including late or missed rest breaks and late meals. There is no indication in the records provided to the newspaper (although the Department has that information from the farm) whether the late meals or breaks were two minutes late, ten minutes late or two hours late.

According to the press report a department manager, David Johnson, the Employment Standards Manager, approved a penalty of $4,617. This was for nine violations at $513 per violation. This would be consistent with past Department action for a first violation, particularly given the cooperation and support the farm management showed the Department in conducting the investigations as noted in the documents. The documents show that the Operations Manual for the Department in Chapter 7 states that penalties for first-time violations will be assessed at $250 per violation. If they were to assess this amount for all 13 violation this would come to $3250. Even the $4,617 could be seen as punitive based on the Department’s Manual particularly given the “good faith” and record of the farm.

 

The documents show that the Department can count violations in a number of ways and therefore has extremely wide latitude in how it assesses penalties. The range is from a single violation for $513 to counting each individual violation for every worker working at the time which would come to nearly $3 million. According to the press account, the Department states they chose a “middle road” in assessing penalties for one day at $513 times 583 employees affected. Because the investigators noted “the employer’s cooperation with the investigation, openly sharing information we requested and made immediate corrections to avoid future meal/rest break violations” they cut the number of employees to 292 and assessed a penalty of $149,796.

 

 

Why go from a standard approach recommended in their own Manual and approved by a department head to a penalty over 30 times higher?
The documents clearly show the answer is “publicity.” In other words, a routine investigation without publicity would have resulted in fines 30 times less than this farm was assessed. The exception fines were assessed because the activists succeeded in getting KING 5 TV, Seattle Times, Univision and other local news outlets to come out and do a story based on their false accusations of the farm’s treatment of workers. Is this any different from someone settling a spat with a neighbor by getting the local media out to cover their false accusations, and having the city authorities fine the neighbor an outrageous amount because of the “publicity?” Good citizens would be appalled at this definition of justice and the abuse of regulatory process by activists.

There are three problems related to this action of the Department of Labor & Industries:

  1.  It reveals the severe difficulties farmers have in complying with the exceptionally strict and rigid laws protecting farm workers relating to rest and meal breaks.
  2.  It shows the very high level of discretion the Department has in assessing penalties with significant potential for abuse.
  3. It signals to activists that they can significantly influence decisions of the Department by making false accusations designed to generate media coverage.

The problem with rigid rest breaks

Non-farm employers must be very puzzled by this situation because we are not aware of any other type of employer who would face such penalties for late breaks or meals of even a few minutes. For that matter, what employer is required by law to provide free government approved housing, free transportation to and from work, and affordable meals at strictly specified intervals? An attorney for Columbia Legal Services stated that guest workers are the least protected of all workers, which can only result in calling their credibility into question.

Rest breaks are a difficult issue for farmers because workers oppose the lack of control they have over their own rest breaks. Workers do not want to be forced to walk down quarter mile long rows at very specific times just because the law says they have to take a break. They want to take their breaks when they come to check in their harvest or at times convenient to them and to minimize loss of earnings. When the harvest is good and they are making $30 an hour or more with incentive pay, it costs the workers a lot of money to take these regimented breaks. Workers do take breaks frequently beyond the required ones but as they paid on production, they much prefer to have a higher level of control over their own breaks. But most farmers enforce the break law rigorously because even a very minor delay or missed break can result in massive fines as we have just seen. Workers have threatened to quit work for farms that are rigid in enforcement, preferring farms that are not strict in order to increase their pay. Farmers are between a rock and hard place having to choose to risk enforcement action or acquiesce to their workers’ demands at a time when recruiting and retaining workers is increasingly difficult.

The problem with very wide discretion in assessing penalties

Judges have considerable discretion in determining just punishments, but that discretion is normally restricted by sentencing guidelines. The fact that for violations of this nature, Department staff can set penalties ranging from $513 to $3 million is unsettling. This gives them control over the very existence of a farm. Vindictiveness or personal dislike for a farmer or farm manager could greatly influence the penalties assessed. This level of discretion appears to violate our sense of justice let alone due process and government’s relationship to the governed. We believe it is appropriate that the legislature evaluate this situation and see if stronger guidance should be provided to avoid influence of “publicity” or personal animus in assessing government penalties.

The problem with “publicity” as an influencing factor in assessing penalties

No doubt the activists involved in this action feel greatly empowered by this decision by the Department. The Department has sent a clear message to them: “Make enough noise and we will make your targets pay regardless of the severity of the violation.” This also gives the media a certain degree of control over government determination of justice. This is troublesome because of the media’s inclination to emphasize emotion and outrage. Media outlets live or die by ratings and readers and they know it is strong emotion that attracts audiences. Activists are very adept at manipulating the media channels to cover “news” that is highly visual and packed with outrage. Images of protesting workers claiming a farmer has caused the death of a worker is sure to draw reporters’ attention as it did in this case. The facts don’t seem to really matter. It is the severity and human emotion related to the claim that matters. The Department in assessing this penalty has provided the reward activists need to continue this manipulation and deception.

There is another message involved, this time to farmers: “Do all that you can to avoid this kind of activist attention and negative media exposure.” That means keeping their heads down and keeping quiet in the face of viciously false accusations. Above all, don’t expose yourself to the possibility of being targeted by the activists. The consequences are severe: numerous in-depth investigations by the Department triggered, as they acknowledge, by the media attention, and unprecedented fines and penalties for even minor violations. What are the consequences of this unwillingness of farmers to speak out to even defend themselves? The media gets only the activist’s side of the story and do not go beyond the silence of the farmers to investigate the facts. Farmers also are very reluctant to hire guest workers knowing that it is choosing to hire guest workers that over the past several years has triggered the activists into taking action against the farm. It is the activists intention to restrict or end the guest worker program to facilitate the imposition of farmworker unions. The real hesitation in using guest workers, particularly in Western Washington where the activism has focused, results in farmers choosing not to plant more crops and even decrease their acreage because of the severe and increasing shortage of workers. One consequence of this action of the Department is the likely accelerating decline of state farm production, the increase in imported foods, the increase in food related illnesses from more imported food and the loss of employment opportunities for these farm workers.

The Department has sent a strong message by this penalty: activism wins in this state, even against the interests of consumers, citizens, farmers and most of all, farm workers. This should be chilling to all citizens concerned about integrity in government, in fairness and justice and due process. We think it would be appropriate for our legislators to ask questions of the Department leaders and, if necessary, take action in the legislature to prevent what appears to be abuse and a miscarriage of justice.