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

• Author: Stephanie A. Koltookian
• Position: J.D. Candidate, The University of Iowa College of Law, 2015; B.A., Truman State University, 2012
• Pages: 1841-1864

1841

Some (Don’t) Like It Hot: The Use of the

“Hot Goods” Injunction in Perishable

Agriculture

Stephanie A. Koltookian

ABSTRACT: From 2001 to 2013, the Department of Labor (“DOL”) used

“hot goods” injunctions to crack down on suspected violations of the Fair

Labor Standards Act by farmers who employed migrant workers. While the

DOL’s use of the “hot goods” injunction in perishable agriculture is an

effective tool for protecting the rights of farmworkers, the injunction creates

special hurdles for growers of perishable goods—food that will spoil if not

shipped quickly, such as berries and fruits. For these growers, the potential of

a “hot goods” injunction is equivalent to losing an entire crop. Even a “hot

goods” objection—that is, the threat of an injunction issued before any court

proceedings—can ruin an entire crop because distributors and wholesalers

refuse to purchase potentially “hot goods.” By the time the matter is sorted out,

the crop has spoiled. In early 2014, an Oregon district court vacated a

consent judgment between the DOL and a blueberry grower because the court

found that the “hot goods” objection placed the grower under economic duress.

This Note examines the DOL’s use of the “hot goods” injunction in perishable

agriculture and analyzes whether the challenges facing growers outweigh the

rights of migrant farmworkers, who face special obstacles when trying to

enforce their rights. This Note concludes that while the “hot goods” objection

is unwarranted because it imposes severe hardships on growers without

affording them adequate legal protections, the DOL’s use of the “hot goods”

injunction affords growers adequate protections and is a necessary

enforcement tool to protect the rights of migrant farmworkers who face many

obstacles in enforcing their rights.

 J.D. Candidate, The University of Iowa College of Law, 2015; B.A., Truman State

University, 2012. Thank you to Professor Marc Linder for helping me develop this idea into a

workable topic, and many thanks to the Volume 100 editors and student writers for making gr eat

suggestions and edits. Finally, thank you to my family for being so supportive with all of my

academic endeavors.

1842 IOWA LAW REVIEW [Vol. 100:1841

I. INTRODUCTION ........................................................................... 1843

II. THE FAIR LABOR STANDARDS ACT’S “HOT GOODS”

INJUNCTION ................................................................................ 1844

A. GOALS OF THE FLSA ............................................................. 1844

B. THE “HOT GOODS” INJUNCTION ............................................ 1845

C. THE USE OF THE “HOT GOODS” INJUNCTION AS A TOOL TO END

UNFAIR LABOR PRACTICES ..................................................... 1846

D. “HOT GOODS” IN THE GARMENT INDUSTRY ............................ 1846

E. APPLYING THE “HOT GOODS” INJUNCTION OUTSIDE THE GARMENT

INDUSTRY ............................................................................. 1847

III. AGRICULTURE’S UNIQUE ISSUES REGARDING THE “HOT GOODS”

INJUNCTION ................................................................................ 1849

A. AGRICULTURAL WORKERS ARE TREATED DIFFERENTLY UNDER THE

FLSA .................................................................................... 1849

B. MIGRANT FARMWORKERS HAVE AN INFERIOR BARGAINING

POSITION IN ENFORCING THEIR RIGHTS AGAINST THEIR

EMPLOYERS ........................................................................... 1852

C. THE “HOT GOODS” PROVISION CAUSES PRODUCERS OF PERISHABLE

GOODS ECONOMIC DURESS .................................................... 1855

IV. THE DOL SHOULD USE THE “HOT GOODS” INJUNCTION INSTEAD

OF THE “HOT GOODS” OBJECTION TO PROTECT MIGRANT

FARMWORKERS ............................................................................ 1858

A. THE DOL CAN USE THE “HOT GOODS” INJUNCTION AS A POWERFUL

TOOL TO PREVENT LABOR ABUSES IN THE AGRICULTURAL

MARKET ............................................................................... 1859

B. ALTHOUGH USING THE “HOT GOODS” INJUNCTION TO ENFORCE

LABOR VIOLATIONS IN AGRICULTURE CREATES UNIQUE PRESSURES

ON THE GROWER, PROCEDURAL SAFEGUARDS SERVE AS

MEANINGFUL CHECKS ON THE SYSTEM ................................... 1861

1. Like Any Temporary Restraining Order, a Successful

“Hot Goods” Injunction Requires Showing That the Suit

Is Likely to Be Successful ............................................ 1861

2. Despite the Unique Pressures on Growers, Growers Are

in a Superior Bargaining Position to Enforce Their

Rights Against the DOL Than the Migrant Farmworkers

Are in to Enforce Their Rights Against a Grower ..... 1863

V. CONCLUSION .............................................................................. 1864