Date: Oct 01, 2013
Magazine:
October 2013 -- Wellness Program: Company-wide Exercise Plan Reaps Benefits

A federal district judge court for the Eastern District of Washington recently held that the Migrant and Seasonal Workers Protection Act (MSPA) gives the Department of Labor broad authority to investigate wage violations, and wrote that “an open field falls outside the protection of the Fourth Amendment.”  The court granted the labor secretary a preliminary injunction prohibiting a blueberry farm from excluding investigators from DOL’s Wage and Hour Division (WHD) from entering the farm’s blueberry fields.

But the court also said MSPA does not give DOL the right to enter farm buildings without a search warrant.  Distinguishing the migrant worker protection statute from other laws covering regulated industries, the judge declined to approve a warrantless search of farm structures, including an open packing shed.

 

DOL Investigates Blueberry Farm

According to the decision, Blue Mountain Farms, Blue Mountain Farms Packing, and their two individual owners operate blueberry farms and a packing shed in the state of Washington.  On July 23, WHD investigators traveled to the packing shed in an effort to investigate whether the farm was paying migrant workers in compliance with the MSPA.

Judge Rosanna Malouf Peterson said the parties disagreed about whether the company was cooperative on July 23, but it was undisputed that on July 24, the DOL employees were not allowed entry on the farm.  Farm representatives threatened to call local law enforcement officials if the DOL agents did not leave.

 

DOL Goes to Court

On July 25, DOL filed a complaint for permanent and temporary injunctive relief, and also filed a motion for a temporary restraining order to prevent the employer from excluding DOL investigators from the farm or farm buildings.

Judge Peterson said DOL made a “straightforward” case, relying primarily on the MSPA which empowers the agency to “investigate, and in connection therewith, enter and inspect such places (including housing and vehicles) and such records (and make transcriptions thereof), question such persons and gather such information to determine compliance” with the statute.

The act also prohibits action to “unlawfully resist, oppose, impede, intimidate, or interfere with any official of the Department of Labor assigned to perform an investigation, inspection, or law enforcement function pursuant to [MSPA] during the performance of such duties.”

DOL argued that the farm had illegally impeded its investigation, while Blue Mountain argued it had not unlawfully impeded the federal agency’s investigation, and that in any event the applicable section of the MSPA is unconstitutional.

 

‘Open Field’ Exception Allows Entry to Farm

The judge first wrote that she did not need to find a violation of the MSPA in order to determine whether DOL had a right of access to the farm. She said that under existing case law, “the Secretary may seek to vindicate the Department’s investigatory power even without a finding of a violation of the MSPA.”

The court also said that while warrantless searches of property are “presumptively unreasonable” under the Fourth Amendment, the U.S. Supreme Court has held that an open field, including farmland, falls outside the protection of the constitutional amendment.

Blue Mountain Farms argued that earlier “open field” cases involved incursions onto private property of limited duration, such as searches for drugs or alcohol, while an MSPA investigation including employee interviews would be a more prolonged process.

However, the court said U.S. Supreme Court precedent supported DOL’s entry onto the Washington farm. “[T]he logic of the open field exception is that entry into an open field does not constitute a search and therefore does not come within the ambit of the Fourth Amendment,” Peterson wrote, adding she was “aware of no authority… converting an incursion into an open field into a search based on the duration of that incursion.”

 

Search Warrant Needed to Enter Farm Buildings

The court found that “while the Fourth Amendment provides no barrier to investigating in Defendants’ fields, it does restrict the Secretary’s authority in Defendants’ buildings.”

WHD contended that its investigators could enter open farm structures, including the Mountain Farms packing shed, arguing that the Supreme Court has recognized that heavily regulated industries have a lower expectation of privacy than individuals enjoy in their homes.

However, “simply regulating an industry does not completely deprive a business of its Fourth Amendment rights.  Courts have upheld warrantless searches conducted under laws that provide for regular government inspections of businesses, if the laws set standards for such inspections,” Judge Peterson said.  In such “pervasively regulated” industries, statutory controls over inspectors may provide adequate protection of property interests without the need for a search warrant, the court said.

By contrast, MSPA grants the Labor Secretary broad authority in conducting MSPA inspections, but “no statute limits the frequency, timing, or scope of the Secretary’s inspection authority.”

Under the MSPA, the court found, “searches made pursuant to the Secretary’s authority that fall within the ambit of the Fourth Amendment, i.e., searches of structures on commercial farms, are not subject to the warrant exception for pervasively regulated businesses.”

Peterson granted a preliminary injunction allowing DOL access to the Washington farm, but not its buildings, until Sept. 30.  The court said the agency may file a motion to extend the injunction if it needs more time to conclude its investigation of Blue Mountain Farms.

In an Aug. 12 statement on the decision, WHD Regional Administrator Ruben Rosalez and Janet Herold, regional administrator for the department’s Office of the Solicitor, said, “We are pleased that the court recognized the importance of allowing us to continue—unimpeded—our on-site investigation of this employer.”

 Having access to workers and being able to observe workers in the fields will allow investigators to ensure that employees receive their earned wages, and that the employer observes child labor laws and maintains safe conditions for workers, the DOL officials said.

 

Investigation Protocol

In this case, the court applied the “open field” doctrine to permit WHD investigators to enter farm fields and interview workers, without the requirement to obtain a warrant.  By contrast, the Immigration and Reform and Control Act  requires ICE to have a warrant and rejects the open field doctrine, except that I-9 audits can be conducted by ICE without a warrant upon three days notice.

This case emphasizes the need to train farm supervisors about government agency inspections.  Developing a protocol to manage agency inspections is highly advisable.  Such a protocol may include, but should not limited to, the following:

 

1. Periodically review procedures.  Conduct occasional “spot checks” to ensure the procedures are being followed and documented correctly.  Periodically review record retention practices.

2. Have a knowledgeable, designated representative in place that is authorized to meet and talk with agency personnel.  The designated person should be bilingual in order to assess the Spanish language skills of the inspector.

3. When agents do show up, direct and accompany the agent to the company representative responsible for dealing with the agency.  The representative must be available within 10-15 minutes.

4. Check the identities of the agents by asking for a business card and ensuring they are representatives of the stated agency.  If you are suspicious, call the agency to verify their identity and immediately contact your attorney.

5. Find out why the investigators are there and meet with them to identify the scope of the inspection.

6.  Stay calm, be courteous and don’t get defensive.  You should ask for the time necessary to compile and copy the records requested by agents.  Don’t allow documents to be removed from your property without making copies; you are not to allow original documents to be removed without a warrant.

 

WG Staff Contact

Jason Resnick
Sr. Vice President & General Counsel
949-885-2253

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