Feds investigated forestry firm

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Evergreen Forestry Services, the company that employed the 14 foreign workers who were killed in the Allagash in September, allegedly has a “woeful history of noncompliance” with federal labor laws, according to U.S. Department of Labor documents obtained by the Bangor Daily News.

Three years ago, Evergreen agreed to pay $25,000 to the Department of Labor for allegedly violating six provisions of federal labor laws in Maine.

The contractor, based in Idaho, has run afoul of the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act on dozens of occasions going back to 1984 in several states, according to Labor Department inspectors’ reports.

The acts include protections for temporary seasonal workers like those from Guatemala and Honduras who were killed when the van they were riding in plunged off John’s Bridge in the Allagash several weeks ago. One man survived the crash.

They were on their way from Caribou to thin trees on land owned by Pingree Associates and managed by Seven Islands Land Co. Evergreen Forestry Services was the contractor which hired the men.

The U.S. Department of Labor is currently investigating the accident. However, state officials have said there is nothing to suggest improper conduct by Evergreen in this instance.

The accident’s only survivor said it appeared the crew foreman was in a hurry to get to the job site because rain the previous day had cut their work time short. The men earned more money if they thinned more acres per day. The van was reportedly speeding at the time of the accident.

Contacted by phone, U.S. Labor Department officials declined to provide further information about the agency’s investigations of Evergreen’s activities in Maine, saying they were precluded from doing so because there was currently “an open investigation” of the company’s activities here after the Sept. 12 accident.

However, a department spokesman did provide the Bangor Daily News with a written three-paragraph statement about Evergreen’s history in late October.

The agency is conducting “a thorough review of the firm’s entire history of compliance with the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act with respect to its operations throughout the U.S.,” the statement said.

The statement went on to say that Tammy McCutchen, head of the department’s Wage and Hour Division, has made enforcement against repeat violators a top priority for the agency. “She has set goals and implemented strategies to help increase the level of compliance among prior violators – especially those who employ vulnerable low-wage workers,” it said.

Past problems

U. S. Department of Labor records show a long history of alleged labor law violations that have been met with only occasional fines from regulators.

The past alleged violations primarily involve nonpayment of overtime wages and poor record keeping, according to documents obtained through the federal Freedom of Information Act.

The $25,000 settlement, which was signed in November 1999, stemmed from Labor Department investigations that charged the Idaho-based company failed to pay overtime to foreign workers in several locations in Maine and New Hampshire.

The company was also pursued for not keeping adequate records and not disclosing working conditions to the workers in accordance with the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act from August 1996 to September 1997.

Rather than pursue litigation, the Labor Department settled the matter with the November 1999 agreement, which also stipulated that Evergreen pay more than $5,000 in back wages owed to 71 workers, besides the $25,000 fine. According to a 2000 investigation report, which described this case, the back wages owed to employees actually totaled more than $160,000 and a civil monetary penalty of $399,500 was assessed against Evergreen. The amounts were negotiated down.

“In 1999, the Wage and Hour Division did assess $400,000 in civil money penalties against this employer for repeat and willful violations of the Fair Labor Standards Act and for violations of the Migrant and Seasonal Agricultural Protection Act,” the U.S. Department of Labor said in a written response to recent inquiries from the News about the settlement.

“The employer subsequently filed an appeal of the [penalty] amount. Upon review of the investigation file, problems with evidence and concerns about existing case law were identified. As a result, the Department reached an agreement with the firm to pay $25,000 and comply with the laws in the future,” the statement said.

Evergreen’s attorney, former Maine Attorney General Andrew Ketterer, said the violations occurred six years ago and that the company has since implemented measures to make sure such violations do not happen again.

For example, the company has developed better time keeping procedures and has improved its record keeping.

“They have done a good job of doing what needs to be done … in what is largely an outdoor operation,” Ketterer said.

“They changed their practices and they should be commended for that,” he added.

In addition, the company cooperated fully with the Labor Department investigations, answering questions and providing documents, and the company quickly paid back wages that were found to be owed to employees, said Ketterer, who has only recently been hired by Evergreen.

He was not the company’s attorney when the investigations were done, and he was unable to reach Evergreen owner Peter Smith to discuss the investigation reports after they were sent to him by the News.

“Woeful history”

The Department of Labor has reviewed Evergreen’s practices in Maine and some other states on numerous occasions according to department documents obtained by the News. They have alleged numerous problems.

“[Evergreen] has a lengthy and woeful history of non-compliance with the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act,” a U.S. Department of Labor investigator wrote in a 1997 report of the company’s practices in Maine.

That investigation was made of Evergreen operations in Fort Kent, Rangeley, West Forks, Greenville, Costigan, Jackman and West Stewartstown, N.H. The work was done for J.D. Irving Corp., Mead, S.D. Warren and Champion International. The investigation was undertaken, the report said, “because of evidence starting to come to light of violative behavior continuing despite ‘intervention’ by Wage and Hour.”

In the report, the U.S. Department of Labor investigator cites a long list of alleged Evergreen violations across the nation including not paying overtime in 1984, 1988 and 1990.

“Regardless of the hours worked, the payroll indicated consistently 40 hours, and the [contractor] could not furnish supplementary records to back up the payroll or hours worked,” the 1997 report said. In this instance, $8,300 in back wages were subsequently paid, the report said.

In addition to wage violations, employment conditions were not fully disclosed to the workers, according to the report. Evergreen did not tell workers that they would be required to buy their own saws. In fact, the printed material used to recruit the workers makes no mention of tree thinning work at all, the investigator wrote. Instead, the material only mentions tree planting.

In an instance where Evergreen did provide housing to employees in Fort Kent, the facilities were not safe or healthy, according to the same investigation report. Debris was scattered around the building, beds were too close together and windows were broken and none had screens. In addition, stoves for heating and cooking were in the same room where the men slept and oxygen deprivation could have resulted because the windows could not be opened, the investigator wrote.

The same report went on to say that when informed of the violations, Evergreen owner Peter Smith said that “employees must be lying and that his company cannot comply any better.”

Another federal Labor Department investigation in 2000 alleges that Evergreen failed to provide safe vehicles to transport workers. “On the day of the inspection, the vehicle used … to transport his crew had visible bald tires. The vehicle was not in safe operation condition due to the state of the tires,” the report said.

The same investigative report said that some workers were not told that they were going to Maine at the time they were recruited in Honduras. A disclosure form given to the workers stated that they would be employed in “the Southeast United States in Mississippi, Alabama, Louisiana, Tennessee, Arkansas, North Carolina and South Carolina, with the work period covering 12/20/99 to 5/15/00.” The pay rate was to be $7.40 per hour to $10.42 per hour depending on location. The form spoke of tree planting, not thinning work, the report said.

The crew arrived in Maine on May 2, 2000, where they did planting and thinning work. The workers were in Maine for three weeks before they were given a second disclosure statement. At this time they also received their first paycheck for work in Maine and “were surprised to learn that their pay rate was only $7.25 per hour,” the investigator wrote.

The same investigative report said that workers had no idea how much they would be earning and that accurate time records were not kept. Time records were altered by crew leaders and entire weeks worth of timecards were completely missing, the investigator wrote.

The U.S. Department of Labor declined to disclose to the newspaper the results of that investigation.

Remiss regulators

A pattern of allegations against Evergreen for repeatedly violating federal labor laws and paying small settlements in Maine and other states shows that regulators are not doing their jobs to protect workers like those brought to Maine to thin trees, worker advocates say.

“The Department of Labor should have realized there was a problem long before we did,” said Carol Brooke of the North Carolina Justice and Community Development Center.

Her group, along with Legal Services of North Carolina, has asked the U.S. Labor Department and Immigration and Naturalization Service to stop allowing Evergreen to bring foreign workers into the country.

This year, Evergreen brought 354 Central American workers to Maine to thin and plant trees.

“The federal government has turned a blind eye,” said Lori Elmer, a staff attorney with Legal Services of North Carolina, a group that works with migrant workers. “We have been concerned about [Evergreen’s] history.”

Adam Fisher, a spokesman for the Maine Department of Labor, said his agency does not have much of a role to play when it comes to enforcing federal labor laws and hiring foreign workers.

The state verifies that American workers were given a chance to obtain the jobs and ensures that prevailing wages are paid. After that, it is up to the U.S. Department of Labor to ensure that rules are not broken.

The state does not do its own investigations. However, if it becomes aware of complaints, it can pass those concerns on to federal officials, Fisher said.

John Chavez, a spokesman for the federal Labor Department in Boston, said it is a policy of the Wage and Hour Division never to divulge how an investigation gets started. It could have been prompted by a complaint by a third party or could have been part of a routine investigation, Chavez said.

Asked about investigations of Evergreen’s practices in Maine, George Rioux, district director of the Labor Department’s Wage and Hour Division for Northern New England, said: “I’m not denying we did an investigation of Evergreen.”

He said most of the company’s problems had to do with back wages. Once the wages are paid, the matter is typically settled, Rioux said.

“The process is flawed because of a lack of enforcement,” said Billy Green, the monitor advocate for the Employment Security Commission in North Carolina. He asked the U.S. Labor Department’s inspector general to review Evergreen’s activities in that state. It is unclear what the outcome of that review was.