“No Easy Answers”: Interview with a Whistleblower

Q:  How did you become involved in labor issues?  How long have you worked at the Department of Labor, and where?

I became interested in labor issues when I took my first labor law class, which unfortunately wasn’t until my third year of law school!  In 1990 I began working in the Solicitor’s Office (the Boston office covers all of Region One including Connecticut, Rhode Island, Vermont, Massachusetts, New Hampshire and Maine).  I  personally primarily work on cases involving Occupational Safety and Health (OSHA) and Wage and Hour, such as the Fair Labor Standards Act (FLSA) and the Davis Bacon Act.  I also do some Whistle Blower Statute work. There are a myriad of other laws enforced in my office.

Q:  Does DOL hire any former laborers to work in its offices, i.e. miners to work in the Mine Safety & Health Administration or disabled workers to work in the Office of Disability Employment Policy?

The agencies tend to hire a wide cross section of people to be investigators, usually with technical experience in the fields they investigate.  For example, OSHA often hires people with scientific backgrounds to investigate health issues involving over-exposures to lead, chemicals or noise.  They also hire people with construction experience to investigate construction-related violations; people who have worked in the field with machine guarding, electrical issues, fall hazards, etc.

Q:  What is your personal experience in agricultural labor disputes?

I was involved for years in one particular agricultural case in the 1990’s involving the DeCoster Egg Farm.  You might recognize the name as Jack DeCoster has been in the news recently with the salmonella concerns in a number of his farms in the Midwest. The location I was involved with was the DeCoster Egg Farm in Turner, Maine.  I worked with the team in my office representing Wage and Hour due to FLSA violations (failure to pay minimum wage and overtime) to the workers and under the Migrant and Seasonal Workers Protection Act, ensuring safe and healthy housing for these workers. Another team of my colleagues worked on the OSHA violations in that case.  The case resulted in a settlement in the late 1990’s, but my office worked on that case for years.

Q:  One of the reasons farm workers are so frequently exploited is that they are unable to file complaints:  for fear of retaliation from employers, for fear of deportation, for lack of access to the world outside the farm, for lack of information about how DOL works, and for lack of faith in DOL’s ability to quickly and fairly resolve disputes (see GAO’s 2009 study on wage theft). For these workers, how can violations be resolved?

That is such a difficult and important question, and unfortunately  I have no easy answers.  The U.S. Department of Labor, like many similar  governmental investigative arms, is historically under-staffed and under-funded.  For every investigation that gets done by the various agencies, so many investigations are not done simply because the department does not have the staffing to do it. There are so many priorities for these agencies.  This is true even under the Obama administration, where agencies have much more funding, staffing, and freedom to pursue their investigative goals than in the previous administration.  Whistle blower laws are designed to help when an employer threatens an employee, but you are right:  for the “invisible work force” – the undocumented workers, the workers in fear of being discovered, and even workers who simply feel powerless due to their positions in life, contacting the DOL and coming forward is not likely.  Outreach sometimes works, but again with lack of staffing, less of that happens than it should.   Grassroots organizations can be helpful to bridge the gap and assuage fears. It is a difficult question, and unfortunately I do not have satisfying answers.  Another area that is difficult both from a farmworker perspective  is the issue of misclassification.  Often employers attempts to classify temporary workers as independent contractors rather than employees, attempting to take those workers out of the protection of the the various laws enforced by the DOL.  This has become a big issue that I personally have spent time litigating.

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