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Antenor v. D & S Farms

July 19, 1996

IMMACULA ANTENOR, ET AL., PLAINTIFFS-APPELLANTS, YSNEL OSNEL, PLAINTIFF,
v.
D & S FARMS; IORI FARMS, INC.; VIRGIL S. GIL TURKE, A/K/A VIRGIL BANCIU; AG-TECH SERVICES, INC., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Florida. (No. 90-868-CIV-DLG). Donald L. Graham, Judge.

Before Carnes and Barkett, Circuit Judges, and Dyer, Senior Circuit Judge.

Author: Barkett

BARKETT, Circuit Judge:

Immacula Antenor and 610 other seasonal agricultural workers ("farmworkers" or "pickers") appeal from a summary judgment in favor of D & S Farms and Iori Farms, Inc. ("growers") on their claims under the Migrant and Seasonal Agricultural Worker Protection Act and the Fair Labor Standards Act.*fn1 The district court granted the judgment after concluding that the farmworkers presented insufficient evidence that they were "employed" by the growers under these statutes. Upon de novo review of the record, we find substantial evidence that the growers, along with a labor contractor, were "joint employers" of the farmworkers. Accordingly, we reverse the summary judgment and remand for proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

The facts relevant to the existence of an employment relationship between the growers and pickers can be summarized as follows.*fn2 In the mid-1980s, the growers began producing snap beans for fresh market sale. In search of a steady supply of labor to pick the beans, the growers turned to Virgil Turke, owner and operator of Ag-Tech Services, Inc. ("Ag-Tech"), a labor contracting business. The growers and Turke agreed that he would assume responsibility for hiring, furnishing and paying the pickers, and that he would be paid $3.90 per box of beans. The farmworkers were among the people hired by Turke to pick the growers' crops between 1986 and 1989.

Based on planting schedules and market demand, the growers decided when to harvest a particular bean field. After selecting a field, they told Turke its location and the number of workers needed. Turke then arranged for subcontractors to recruit and hire pickers. After arriving at a field, the pickers were assigned rows by Turke and his subcontractors. They could not begin picking, however, until the growers and their onsite foremen gave the command to start work, because it was essential, for commercial reasons, that picking not begin until the morning dew had lifted from the beans. The pickers filled the boxes that were brought to the field by the growers and distributed by Turke and the subcontractors. As the pickers filled the initial allotment of boxes, they walked to the growers' field trucks, where one of the growers' employees gave them additional boxes.

Two sets of supervisors, also known as "field walkers," oversaw the pickers' work. One set was hired by Turke and the other set was hired by the growers. Both sets of field walkers passed through the rows of beans, checking the work of individual pickers and, when work was found to be deficient, spoke directly to the picker to ensure that corrective steps were taken; the growers' field walkers also complained about deficient work to Turke and his subcontractors.

The subcontractors' assistants carried full boxes to the growers' trucks, where they were weighed and closed by the subcontractors or their assistants. The growers' field walkers then loaded the boxes on trucks and drove them to the growers' packing facility. As the day progressed, more and more of the growers' field walkers' time was absorbed in stacking and loading boxes, with a corresponding decrease in the time devoted to supervision of individual bean pickers.

Work normally concluded when the pickers completed the rows assigned to Turke by the growers. On some occasions, however, the growers decided the crew would work longer or shorter hours, depending on their harvest needs. If the growers decided, for example, to halt picking to avoid overloading their packing and storage facilities, their field walkers went to the field and removed the picking buckets from the pickers' hands.

The growers' payment to Turke was based on the number of boxes of beans delivered to the packinghouse. Although the price was to be $3.90 per box, the actual payment was less. Because Turke was financially unable to purchase worker's compensation insurance for the farmworkers, the growers withheld 11 cents per box from his compensation to purchase a worker's compensation policy, which named the growers as the insured parties and employers of the farmworkers. The growers also computed social security taxes due on the workers and issued Turke two checks--one for the taxes and another for the agreed upon price per box less the social security taxes and the 11 cents per box for worker's compensation insurance. From his payment, Turke paid the subcontractors a set amount for each box picked by their workers, which varied depending on whether the subcontractor provided transportation to the farmworkers. The subcontractors then paid the farmworkers their wages.

II. PROCEDURAL BACKGROUND

The farmworkers filed suit against the growers, Turke and Ag-Tech under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801-72 (1994) ("AWPA"), and the Fair Labor Standards Act, 29 U.S.C. §§ 201-19 (1994) ("FLSA").*fn3 Their complaint alleged that the growers, Turke and Ag-Tech violated the AWPA by failing to keep hourly records, pay unemployment compensation and social security taxes, and pay wages promptly when due, id. §§ 1831(c)(1), (2) & 1832(a), (c). The farmworkers alleged that the growers also violated the AWPA by using labor contractors to recruit and transport them without reasonably ensuring that the contractors were registered and insured, id. §§ 1841(b)(1)(C) & 1842. The farmworkers claimed that defendants violated the FLSA by failing to keep hourly records and pay minimum wage, id. §§ 206(a), 211(c). Defaults were entered against Turke and Ag-Tech for failure to file responsive pleadings.

Following discovery, the parties filed cross motions for summary judgment on the growers' liability under the FLSA and the AWPA. The farmworkers argued that the growers were liable because they, along with Turke and Ag-Tech, were "joint employers" of the farmworkers. The growers contended that they were not liable because Turke was the farmworkers' sole employer. The district court granted summary judgment to the growers and denied summary judgment to the farmworkers, finding that there were no genuine issues of material fact and that the growers were entitled to judgment as a matter of law. See Antenor v. D & S Farms, Inc., 866 F. Supp. 1389 (S.D.Fla.1994).

III. DISCUSSION

A determination of employment status under the FLSA and the AWPA is a question of law subject to our de novo review. Aimable v. Long & Scott Farms, Inc., 20 F.3d 434, 440 (11th Cir.), cert. denied, U.S., 115 S. Ct. 351, 130 L. Ed. 2d 306 (1994). Because we are reviewing a summary judgment in favor of the growers, we must determine whether there are genuine issues of material fact and, if not, whether the growers are entitled to judgment on the question of joint employment as a matter of law; stated differently, we must determine whether the evidence and all reasonable inferences therefrom, viewed in the light most favorable to the pickers, support a reasonable conclusion that they were employed by the growers for purposes of the AWPA and the FLSA. See Parks v. City of Warner Robins, GA, 43 F.3d 609, 612-13 (11th Cir.1995). To do this, we initially consider the statutory definition of "employ" under the FLSA and AWPA and their legislative history.

A. Statutory Background

The FLSA was enacted in 1938 in order to eliminate "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers...." 29 U.S.C. § 202(a), (b). It requires that employers, among other things, keep payroll records and pay employees a minimum hourly wage and overtime. Id. §§ 201-11. The AWPA, enacted in 1983, was intended "to assure necessary protections for migrant and seasonal agricultural workers...." Id. § 1801. Among its provisions, the AWPA requires agricultural employers to register with the government, maintain employment records for workers, and comply with various compensation, housing and transportation provisions. Id. §§ 1811-44.

The growers' liability under the FLSA and the AWPA depends on whether they "employed" the farmworkers furnished by Turke. See id. § 203(d), (e)(1); id. § 1802(2). Both statutes utilize the same definition of "employ," so if the growers employed the farmworkers under one statute, they necessarily employed them under the other. Aimable, 20 F.3d at 440. In defining "employment" under both statutes, Congress expressly rejected the common-law definition of employment, which is based on limiting concepts of control and supervision. See Walling v. Portland Terminal Co., 330 U.S. 148, 150-51, 67 S. Ct. 639, 640-41, 91 L. Ed. 809 (1947); Aimable, 20 F.3d at 439.*fn4 Rather, an entity "employs" a person under the FLSA and the AWPA if it "suffers or permits" the individual to work. 29 U.S.C. § 203(g); id. § 1802(5).*fn5 An entity "suffers or permits" an individual to work if, as a matter of economic reality, the individual is dependent on the entity. Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33, 81 S. Ct. 933, 936-37, 6 L. Ed. 2d 100 (1961); Aimable, 20 F.3d at 439.

To assure protection for workers, both statutory schemes make it clear that a worker can be economically dependent on, and thus jointly employed by, more than one entity at the same time. See 29 C.F.R. § 791.2; id. § 500.20(h)(4). Thus, the AWPA and the FLSA specifically cover "joint employment" relationships. The AWPA regulations define "joint employment" as follows:

The term joint employment means a condition in which a single individual stands in the relation of an employee to two or more persons at the same time. A determination of whether the employment is to be considered joint employment depends upon all the facts in the particular case. If the facts establish that two or more persons are completely disassociated with respect to the employment of a particular employee, a joint employment situation does not exist.

Id. § 500.20(h)(4)(i); see also id. § 791.2.*fn6

The AWPA's adoption of the FLSA definition of employment "was deliberate and done with the clear intent of adopting the "joint employer' doctrine as a central foundation of this new statute; it is the indivisible hinge between certain important duties imposed for the protection of migrant and seasonal workers and those liable for any breach of these duties." H.R.Rep. No. 97-885, 97th Cong., 2d Sess. (1982) 6, reprinted in 1982 U.S.C.C.A.N. 4547, 4552 ("House Report"). Previous legislative efforts to protect farmworkers had focused on regulating the crewleaders who recruited, managed and paid the farmworkers. Id. at 4547-48. Those efforts, however, had failed to "reverse the historical pattern of abuse of migrant and seasonal farmworkers," id. at 4549, primarily because crew leaders were transient and often insolvent, id. at 4548. Thus, in designing the AWPA, Congress took "a completely new approach," id. at 4549, making agricultural entities directly responsible for farmworkers who, as a matter of economic reality, depended upon them, even if the workers were hired or employed by a middleman or independent contractor, id. at 4553-54. Although the AWPA places responsibilities on farm labor contractors as well as on agricultural ...


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