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Franco-Hernandez v. Southern Valley Fruit & Vegetable, Inc.

United States District Court, M.D. Georgia, Valdosta Division

February 5, 2015

SOUTHERN VALLEY FRUIT & VEGETABLE, INC., et al., Defendants. and all others similarly Situated, Plaintiffs,


HUGH LAWSON, Senior District Judge.

Before the Court is Plaintiffs' Motion for Conditional Certification of a FLSA Collective Action. (Doc. 18). For the following reasons, Plaintiffs' motion is granted.


The Plaintiffs in this case are temporary agricultural guest workers admitted into the United States from Mexico under the H-2A visa program for the purpose of performing agricultural work at Defendants' farms in and around Colquitt County, Georgia in 2011, 2012, 2013. In order to participate as an employer under the H-2A program, Defendants were required to file a temporary labor certification with the United States Department of Labor ("DOL") and to include a job offer, or "job order." 20 C.F.R. §§ 655.133 and 655.130. The job order, which constitutes the employment contract, contains the terms of employment. 20 C.F.R. §§ 655.103(b) and 655.122. In the requisite job orders, Defendants promised any worker hired by Defendants at least the Adverse Effect Wage Rate ("AEWR"), which was $9.12 in 2011, $9.39 in 2012, and $9.78 in 2012. Defendants likewise promised to pay wages without deduction of items for the employer's benefit or without reducing an employee's wages by shifting costs to the employer. The contract also agreed that workers would be reimbursed for travel costs as required by 20 C.F.R. § 655.122(h).

In Count I of their Second Amended Complaint, Plaintiffs allege that in 2011, 2012, and 2013, Defendants breached the terms of the job orders submitted to the DOL and provided to Plaintiffs and others similarly situated and willfully violated the Fair Labor Standards Act ("FLSA") by failing to reimburse Plaintiffs various immigration and travel-related expenses, including visa and processing fees in excess of $150 per season, lodging and subsistence expenses, bus fare, and border patrol fees incurred during the journey from Mexico to Defendants' place of business in Georgia. Plaintiffs allege that when these expenses were subtracted from their first week's pay, as required by law, Plaintiffs' and other similarly-situated employees' earnings were near or below zero, falling below the required average minimum wage for the relevant pay period. Plaintiffs further allege violations of the FLSA based on Defendants' practice of paying Plaintiffs' and other employees based on the quantity of produce harvested or packed.


Plaintiffs request conditional class certification for all H-2A workers employed by Defendants in 2011, 2012, and 2013. Plaintiffs additionally move the Court to (1) approve for distribution the proposed collective action notice attached as Exhibit A to Plaintiffs' Memorandum of Law; (2) order Defendants to produce the names and last known permanent addresses of all workers employed under the terms of the H-2A job orders in 2011, 2012, and 2013; (3) require Defendants to post the collective action notice in the worker housing barracks and dining hall; and (5) grant Plaintiffs' counsel five (5) months from the date by which Defendants produce the names and address for distribution of the court-approved notice to potential opt-in Plaintiffs.

A. FLSA Conditional Class Certification Standard

The collective action provisions of the FLSA permit employees to bring claims on behalf of themselves and others who are similarly situated. 29 U.S.C. § 216(b). Unlike a class action suit filed under Federal Rule of Civil Procedure 23, which requires those who do not desire to be a member of the class to opt-out, employees who wish to participate in a collective action pursuant to Section 216(b) must affirmatively opt-in and consent in writing to becoming a party. Id .; Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir. 2001); see also Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1249 (11th Cir. 2003).

The decision to grant a class conditional certification rests within the sound discretion of the district court. Anderson v. Cagle's, Inc., 488 F.3d 945, 951 (11th Cir. 2007). The Eleventh Circuit in Hipp described in detail its approved a two-tiered approach for class certification:

"The first determination is to be made at the so-called notice stage.' At the notice stage, the district court makes a decision - usually based only on the pleadings and any affidavits which have been submitted - whether notice of the action should be given to potential members.
Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in conditional certification' of a representative class. If the district court conditionally certifies' the class, putative class members are given notice and the opportunity to opt-in.' The action proceeds as a representative action throughout discovery.
The second determination is typically precipitated by a motion for decertification' by the defendant usually filed after discovery is largely complete and the matter is ready for trial. At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question. If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in ...

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