Some (Don't) like It Hot: The Use of the "Hot Goods" Injunction in Perishable Agriculture

I. INTRODUCTIONSince its creation in 1938, the Department of Labor ("DOL") has used the Fair Labor Standards Act ("FLSA") to improve working conditions and maintain a competitive marketplace by preventing goods produced under unfair labor practices from entering interstate commerce.1 Under the FLSA, one mechanism the DOL can use to prevent these goods from entering the marketplace is the "hot goods injunction," a device that prohibits the movement or sale of "hot goods" in interstate commerce.2 A "hot good" is a product that a grower intends to place into interstate commerce that the grower made or produced using unlawful labor practices, such as paying below minimum wage or using child labor.3 Although the DOL historically used this injunction against the textile industry, today the DOL uses the injunction for more diverse products, including perishable agriculture.4The DOL's use of the "hot goods" injunction in perishable agriculture creates unique problems because the goods can spoil while being held, pending resolution of the labor issue.5 At the same time, most workers who produce perishable agricultural products-migrant farmworkers-face unique challenges in enforcing their legal labor rights, including their transient presence in the area and various immigration issues.6 This Note considers whether the DOL's use of the "hot goods" injunction in perishable agriculture is justified. Part II discusses the history of the FLSA "hot goods" injunction. Part III discusses the DOL's use of the "hot goods" injunction in perishable agriculture, focusing on the relative bargaining strength of growers against the government and the migrant farmworkers against the farm owners. Part IV concludes that despite the inherent risk of economic duress that the DOL's use of a "hot goods" injunction causes, the DOL should continue to use the "hot goods" injunction to protect migrant farmworkers because migrant farmworkers face unique obstacles that complicate their ability to enforce their rights and growers have adequate procedural protections. Part IV also concludes that the DOL's use of a "hot goods" objection-a threat of an injunction-is unwarranted because it imposes equally severe hardships on growers without affording them adequate legal protections.II. THE FAIR LABOR STANDARDS ACT'S "HOT GOODS" INJUNCTIONCongress enacted the FLSA in 1938 to address various problems with the labor market, including employers' use of unfair labor practices, such as child labor and insufficient pay to gain a competitive advantage in interstate commerce.7 One of the methods Congress created to enforce the FLSA was the "hot goods" injunction, which allows the DOL to prevent goods produced in violation of the FLSA from entering interstate commerce.8 Under the FLSA, the Secretary of Labor can use a "hot goods" injunction after investigating the production of goods and attempting to negotiate a settlement with an employer.9 Although the DOL does not use the "hot goods" injunction frequently, in the past the "hot goods" injunction has served as a powerful tool to halt unfair labor practices.10 This Part discusses the overall aims of the FLSA, the "hot goods" injunction as an enforcement mechanism of the wage and hour provisions of the FLSA, and how the DOL has successfully used the "hot goods" injunction to fix unfair labor practices. Part II.A of this Note discusses Congress's goals in enacting the FLSA. Part II.B examines the complexities of the "hot goods" injunction. Part II.C analyzes how the DOL has used the "hot goods" injunction in an attempt to end unfair labor practices. Part II.D details the primary example of the DOL's use of the "hot goods" injunction in the garment industry. Part II.E explains how the DOL has used the "hot goods" injunction outside of the garment industry.A. GOALS OF THE FLSAThe FLSA's declaration of policy states that Congress seeks to remedy "the existence, in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers. …