Garcia-Celestino et al v. Ruiz Harvesting, Inc. et al

Filing 162

ORDER granting in part and denying in part 98 Consolidated Citrus L.P's Case Dispositive Motion for Summary Judgment, Statement of Undisputed Facts and Supporting Memorandum of Law; denying 101 Plaintiffs' Motion for Summary Judgment and Supporting Memorandum of Law Against Consolidated Citrus Limited Partnership. As to Count VI, the Motion is GRANTED and Count VI is dismissed. As to the remaining Counts, the Motion is DENIED.Signed by Judge Sheri Polster Chappell on 7/22/2013. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GAUDENCIO GARCIA-CELESTINO et
al., individually and on behalf of all other
persons similarly situated,
Plaintiffs,
v.

Case No: 2:10-cv-542-FtM-38DNF

RUIZ HARVESETING, INC.,
BASILISO RUIZ, individually, and
CONSOLIDATED CITRUS LIMITED
PARTNERSHIP,
Defendants.
___________________________________/
ORDER1
This matter comes before the Court on consideration of Consolidated Citrus
L.P.’s Case Dispositive Motion for Summary Judgment, Statement of Undisputed Facts
and Supporting Memorandum of Law (hereafter “Consolidated’s Summary Judgment
Motion”) (Dkt. #98), filed on May 11, 2012, Plaintiffs’ Response in Opposition (Dkt.
#119), filed on June 18, 2012, Plaintiffs’ Motion for Summary Judgment and Supporting
Memorandum of Law Against Consolidated Citrus Limited Partnership (hereafter
“Plaintiffs’ Summary Judgment Motion”) (Dkt. #101), filed on May 11, 2012, and
Consolidated Citrus Limited Partnership’s Memorandum in Opposition (Dkt. #117), filed

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on June 15, 2012. For the reasons set forth below, the Court grants in part and denies
in part Consolidated’s Summary Judgment Motion and denies Plaintiffs’ Summary
Judgment Motion.
BACKGROUND
Undisputed Material Facts2
Factual Background
Plaintiffs are migrant and seasonal agricultural laborers hired to pick citrus fruit
for Defendant, Consolidated Citrus Limited Partnership (“Consolidated” or “Consolidated
Citrus”), during the 2006-07, 2007-08, 2008-09, and 2009-10 harvest seasons. Dkt.
#34, p. 1. Consolidated Citrus is one of the nation’s largest citrus growers, which due to
its large harvesting operation, hires farm labor contractors like Defendant Ruiz
Harvesting to furnish citrus pickers. Id. at 7-8; Dkt. #98, p. 7. Defendant Basiliso Ruiz
(“Ruiz”) is the owner and president of Ruiz Harvesting. Dkt. #34, p. 7.
During the 2006-07, 2007-08, 2008-09, and 2009-10 seasons, Ruiz Harvesting
furnished two groups of migrant workers to Consolidated Citrus.

The first group

traveled from Mexico and was hired through the United States Department of Labor’s
(“DOL”) H-2A agricultural guest worker program. Id. at 3; Dkt. #98, p. 14. Under the
program, a category of “non-immigrant foreign workers” may be employed for temporary
agricultural work within the United States. Dkt. #34, p. 3. As a pre-requisite to their
employment, Ruiz Harvesting filed a temporary labor certification with the DOL, which
verified that (1) there were insufficient domestic workers willing, able, and qualified to
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The undisputed facts are based on Consolidated’s Summary Judgment Motion and Undisputed Facts
(Dkt. #98) and Plaintiffs’ Statement of Material Facts in Support of Motion for Summary Judgment Against
Defendant Consolidated Citrus Limited Partnership (Dkt. #101-1). The Court cites these documents
where facts are undisputed, and otherwise determines facts based on the parties’ submissions, affidavits,
and deposition testimony.

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work at the time and place needed; and (2) the group’s employment did not adversely
affect the wages and working conditions of domestic workers.

See 8 U.S.C. §§

1184(c)(1), 1188(a)(1). The certification application submitted to the DOL included a job
offer, commonly referred to as a “clearance order,” which described the workers’ job
terms, most of which were determined by federal regulations governing the H-2A
program relating to minimum benefits, wages, and working conditions. Dkt. #34, pp. 2,
11-12. These clearance orders functioned as the employment contracts between Ruiz
Harvesting and the H-2A workers. Id.
The H-2A Plaintiffs incurred a variety of out-of-pocket expenses as they traveled
from their homes to Consolidated’s job site in Florida and from the job site to their
homes once the work was completed. Id. at 13, 16. For example, Plaintiffs traveled at
their own expense to Monterrey, Mexico to apply for their H-2A visas, purchased
passports, and paid a variety of fees to be issued their visas. Id. The workers incurred
additional costs while waiting in Monterrey for their visa applications to be processed
and while at the U.S.-Mexico border. Id.
Ruiz Harvesting also employed non-H-2A guest workers from within the United
States. Id. at 3; Dkt. #98, p. 10. As a matter of law, Ruiz Harvesting was obligated to
provide the same terms and conditions of employment to both the H-2A and non H-2A
workers. Dkt. #98, p. 10.
Plaintiff Francisco Suarez-Galan is a non-H-2A guest worker who was recruited
and hired within the United States by Ruiz Harvesting to work on Consolidated’s citrus
operations during the 2006-07 and 2007-08 harvest seasons. Dkt. #101-1, p. 8. The
remaining Plaintiffs were hired by Ruiz Harvesting to pick citrus fruit on the fields of

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Consolidated Citrus at various points during the 2006-07, 2007-08, 2008-09, and 200910 harvest seasons. Dkt. #34, pp. 10-11. Plaintiffs were compensated for their work on
a “piece-rate” basis based on the number of tubs of fruit harvested. Dkt. #101-1, p. 12.
In order to record the amount of compensable time worked by Plaintiffs, Ruiz Harvesting
utilized an electronic timekeeping system owned and maintained by Consolidated
Citrus. Id. at 13-14; Dkt. #98, pp. 16-17. The data collected were provided to Ruiz
Harvesting for use in preparing the workers’ weekly paychecks and for maintaining its
payroll records. Dkt. #34, p. 14.
Plaintiffs’ Wage and Hour Claims
Plaintiffs’ Amended Complaint alleges that on several occasions, the workers’
piece-rate earnings totaled less than the amount due under the applicable adverse
effect wage rates. Dkt. #34, p. 14. To address these deficiencies, the payroll software
utilized by Ruiz Harvesting automatically added supplemental money to the workers’
piece-rate earnings so as to boost the earnings to the then-applicable adverse effect
wage rate. Id. The supplemental money appeared on Plaintiffs’ check stubs and direct
deposit stubs and was labeled “Minimum Wage H2A.” Id. at 14-15. At the beginning of
each relevant harvest season, Basiliso Ruiz met with Plaintiffs and other workers and
explained the piece-rate system used to compute their compensation. Id. at 15. Ruiz
also explained to the workers that their weekly paychecks might contain income labeled
“Minimum Wage H2A,” and that any worker receiving this supplemental amount was
required to return the money to Ruiz or his staff upon request. Id. Throughout the
relevant harvest seasons, Plaintiffs received paychecks and/or direct deposits, which

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included the “Minimum Wage H2A.”

On each payday, the workers returned the

“Minimum Wage H2A” sums in cash to Ruiz or one of his lieutenants. Id.
Plaintiffs allege that as a result of these “kickback” practices, they did not receive
the minimum wage due under the applicable adverse effect wage rates. Id. In addition,
Plaintiffs contend that Defendants failed to fully reimburse Plaintiffs for out-of-pocket
expenses incurred during their travel to and from Consolidated’s citrus farms. Id. at 16.
Procedural Background
Plaintiffs have filed suit under the Migrant and Seasonal Agricultural Worker
Protection Act (“AWPA”), 29 U.S.C. §§ 1801-72., the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et seq, and the minimum wage provisions of the Florida
Constitution. Additionally, Plaintiffs allege that Defendants breached the terms of their
employment contracts by: (1) requiring Plaintiffs to kick back their supplemental wages
(Dkt. #101, p. 22); (2) by automatically deducting an hour from each worker’s recorded
work time during the 2007-08 and 2008-09 harvests (id. at 18); and (3) by failing to
reimburse Plaintiffs for their inbound and outbound transportation, subsistence, and
other costs associated with obtaining their visas. Id. at 20.
The Amended Complaint includes six counts. In Counts I-III, Plaintiff Francisco
Suarez Galan assert a claim under the AWPA for violations of the Act’s record keeping,
wage statement, working arrangement, and wage payment provisions during the 200607, 2007-08, and 2008-09 harvest seasons, respectively.

In Count IV, all Plaintiffs

allege violations of the minimum wage provisions of the FLSA. In Count V, all named
Plaintiffs, except Suarez-Galan, assert a class-wide claim alleging a breach of their
employment contracts with Defendants, the terms of which were supplied by federal

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regulations at 20 C.F.R. §§ 653.501, 655.102, 655.103, and. In Count VI, all named
Plaintiffs, except Suarez-Galan, assert a class-wide claim under Article 10, Section 24
of the Florida Constitution, which incorporates the minimum wage provisions of the
Florida Minimum Wage Act (“FMWA”). See Art. 10, § 24(e).
On February 24, 2012, this Court certified a class of (Dkt. #81, p. 3):
All temporary foreign workers (“H-2A workers”) who were employed
pursuant to temporary labor certifications issued to Ruiz Harvesting, Inc.
for working during the 2007-08, 2008-09 and/or 2009-10 Florida citrus
harvests.
Plaintiffs allege class-wide claims only with respect to Counts V and VI. On
January 6, 2012, this Court dismissed (Dkt. #78) with prejudice the claims of Plaintiffs
Urbano Sanchez-Rodriguez, Leopoldo Trejo-Carillo, Roberto Vasquez Escobar, and
Israel Ugalde Eguia against Defendants pursuant to their Joint Motion for Approval of
Settlement Agreement, filed on November 30, 2011 (Dkt. #69). In addition, on October
4, 2012, this Court approved a settlement reached between Plaintiff Francisco Suarez
Galan and Defendants Ruiz Harvesting, Basiliso Ruiz, and Consolidated Citrus and
dismissed Suarez Galan from the case. Dkt. #144. Finally, on May 13, 2013, the Court
approved a settlement of all of Plaintiffs’ claims against Defendants Ruiz Harvesting and
Basiliso Ruiz. Dkt. #160.
STANDARD OF REVIEW
Summary judgment is warranted when there is no genuine issue as to any
material fact. Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if the record taken as
a whole could lead a rational trier of fact to find for the nonmoving party.”

Baby

Buddies, Inc. v. Toys “R” Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010) (internal
quotation marks and citations omitted). A fact is “material” if it may affect the outcome

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of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The moving party bears the burden of showing the absence of a genuine issue
of

material

fact

by

identifying

relevant

pleadings,

depositions,

answers

to

interrogatories, admissions, and/or affidavits. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir.
2004).
To avoid the entry of summary judgment, the non-moving party must offer
enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably
find a genuine issue of a material fact.

Liberty Lobby, Inc., 477 U.S. at 247-48.

However, the non-moving party may not simply rely on beliefs, conjecture, speculation,
or conclusory allegations. Instead, the party faced with a properly supported summary
judgment motion must come forward with extrinsic evidence that meets “the substantive
evidentiary standard of proof that would apply at trial on the merits,” including affidavits,
depositions, answers to interrogatories, and/or admissions. Celotex, 477 U.S. at 322;
Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999).
When evaluating a summary judgment motion, the Court views all evidence and
draws all reasonable inferences in favor of the non-moving party. Scott v. Harris, 550
U.S. 372, 378 (2007); Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). “If
reasonable minds might differ on the inferences arising from undisputed facts, then the
court should deny summary judgment.”

St. Charles Foods Inc. v. Am.’s Favorite

Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (internal quotation marks and citations
omitted).

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When faced with cross motions for summary judgment, a court must consider
each motion on its own merits. Shook v. United States, 713 F.2d 662, 665 (11th Cir.
1983).

Where both parties “disagree as to the facts and take inconsistent legal

theories[,] the mere filing of cross motions for summary judgment does not warrant the
entry of such judgment.” Id.
DISCUSSION
Due to the parties’ various settlements, Plaintiffs’ six-count Complaint has been
distilled down to three claims against Consolidated Citrus concerning its obligations
under the employment contracts, the FLSA, and Article 10, Section 24 of the Florida
Constitution. The parties have filed cross-motions for summary judgment on whether
Consolidated Citrus “jointly employed” Plaintiffs during the relevant harvest seasons and
was therefore subject to liability. The Court will first examine whether a joint employer
relationship existed; next, the Court will determine whether the joint employment inquiry
applies to Plaintiffs’ breach of contract claims; finally the Court will resolve Plaintiffs’
claims under the Florida Constitution and the FMWA.
A.

Joint Employment Status

Legislative History of the FLSA and the AWPA
Plaintiffs initially brought suit under the FLSA and the AWPA, but have since
settled their AWPA claims. Nevertheless, a brief background of both statutes sheds
light on which factors to apply when determining whether Consolidated Citrus jointly
employed Plaintiffs.
In 1938, Congress enacted the FLSA to alleviate “labor conditions detrimental to
the maintenance of the minimum standard of living necessary for health, efficiency, and

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general well-being of workers . . . .”

29 U.S.C. § 202(a).

The FLSA requires an

employer, inter alia, to pay employees a minimum hourly wage and overtime. Id. § 206.
In 1966, Congress amended the FLSA to extend minimum wage protections to certain
agricultural workers. See S. Rep. No. 89-1487 (1966). The AWPA was enacted in
1983 and was intended “to assure necessary protections for migrant and seasonal
agricultural workers . . . .”

29 U.S.C. § 1801.

To this end, the AWPA requires

agricultural employers to register with the government, to maintain employment records
for workers, and to comply with various compensation, housing, and transportation
requirements. Id. §§ 1811-44.
Consolidated’s liability under the FLSA (and the AWPA prior to the settlement) is
based in part on whether it “employed” Plaintiffs.

See id. § 1802(2).

In defining

“employment,” both statutes reject the common-law definition, which is based on
agency principles and limiting concepts of control and supervision.

See Walling v.

Portland Terminal Co., 330 U.S. 148, 150-51 (1947); Aimable v. Long and Scott Farms,
20 F.3d 434, 439 (11th Cir 1994). Instead, an entity “employs” an individual under the
FLSA and the AWPA if it “suffer[s] or permit[s]” the individual to work. 29 U.S.C. §
203(g); id. § 1802(5). In other words, an employment relationship exists if, as a matter
of economic reality, the individual is dependent on the putative employer. Goldberg v.
Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961); Aimable, 20 F.3d at 439. Both
statutes provide that a worker can be economically dependent on, and thus jointly
employed by multiple entities at once. See 29 C.F.R. § 791.2; id. § 500.20(h)(4). The
issue of joint employment is a question of law.
Agency, 704 F.2d 1465, 1469 (9th Cir. 1983).

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Bonnette v. Cal. Health & Welfare

Which Factors Apply in the “Joint Employment” Inquiry
Beginning with Aimable, 20 F.3d at 439, the Eleventh Circuit set forth several
versions of a multi-factor analysis that must be applied to determine a “joint
employment” relationship.

In Aimable, a farm labor contractor hired migrant farm

workers to harvest crops for a property owner. Id. The farm workers brought claims
under the FLSA and the AWPA. Id. In determining the existence of an employment
relationship between the property owner and the farm workers, the court established an
eight-factor test - five of which were derived from the regulations relating to the AWPA
and three from case law.
irrelevant.

Id. at 444.

Id. at 438.

Three additional factors were found to be

In 1997, the Department of Labor amended the AWPA

regulations to clarify the definition of joint employment by recognizing, for instance, that
“despite Aimable, the great weight of the case law supports consideration of the degree
of permanency and exclusivity” as a factor in the joint employment analysis. Migrant
and Seasonal Agricultural Worker Protection Act, 62 FR 11734-01, 11740.
In response, the Eleventh Circuit revised its test and adopted the following seven
factors: (1) whether the employer has the power to direct, control, or supervise the
worker or work performed; (2) whether the employer has the power, either alone or in
addition to another employer, directly or indirectly, to hire or fire, modify the employment
conditions, or determine the pay rates or the methods of wage payment; (3) the degree
of permanency and duration of the relationship; (4) the extent to which the services
rendered by the worker are repetitive, rote tasks; (5) whether the workers’ tasks were
integral to the overall business operation of the employer; (6) whether the work is
performed on the agricultural employer’s premises; and (7) whether the employer

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undertakes responsibilities in relation to the worker which are commonly performed by
employers. See Charles v. Burton, 169 F.3d 1322, 1328-29 (11th Cir. 1999). The
Charles factors were later adopted by Martinez-Mendoza v. Champion Int’l Corp., 340
F.3d 1200, 1208-09 (11th Cir. 2004).
Plaintiffs argue that Charles and its seven-factor test controls.

Consolidated

Citrus disagrees (see Dkt. #131, p. 1) and cites to Layton v. DHL Exp. (USA), Inc., 686
F.3d 1172, 1177 (11th Cir. 2012), where the Eleventh Circuit examined the joint
employment issue in an FLSA claim, but applied the Aimable factors in lieu of the seven
factors set forth in Charles and Champion.

The court in Layton reasoned that in

Charles (as in Champion), plaintiffs alleged only AWPA claims, not FLSA claims. As
the court explained, “[a]lthough the AWPA defines joint employment by reference to the
definition provided in the FLSA, that does not mean that the reverse holds true – that
joint employment under the FLSA is invariably defined by AWPA regulations.” Id. Thus,
the court reasoned that Aimable’s eight factor analysis was more appropriate to claims
brought forth solely under the FLSA. Id.
Plaintiffs attempt to limit Layton to the facts before it - an employer-employee
relationship between a driver and a shipping carrier - which, Plaintiffs maintain had
nothing to do with the purpose of the AWPA or its regulatory factors concerning an
agricultural workers’ right to minimum wage protections. The Court declines to read that
far into Layton’s rationale.

As the Eleventh Circuit made clear, the Charles and

Champion test applies only where a court considers an AWPA claim. Layton, 686 F.3d
at 1177 (“The court in Charles was considering only AWPA claims, not FLSA claims.”).
Aimable, in contrast, “crafted a definition of ‘joint employer’ that applies to both AWPA

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and FLSA claims and that test has not been disrupted by a case involving [only] FLSA
claims or amendments to the FLSA . . . .” Id. At no point did Layton limit its analysis to,
much less discuss the fact that the employment relationship at issue did not involve
agricultural workers.
Here, because the parties have settled their AWPA claims, leaving only the FLSA
allegations, the Court will follow Aimable. In applying the eight factors, we are guided
by several principles. First, in “joint employment” inquiries, the issue is not whether the
worker is more or less economically dependent on the labor contractor or the grower,
with the prevailing party avoiding responsibility as an employer. Rather, the task is to
determine whether a single employee or worker may have a simultaneous employment
relationship with a grower and labor contractor. Thus, “[t]he focus . . . must be on each
employment relationship as it exists between the worker and the party asserted to be a
joint employer.” Antenor v. D&S Farms, 88 F.3d 925, 932 (11th Cir. 1996) (citing House
Report at 4553-54). Second, no factor is individually determinative as the existence of a
joint employment relationship depends on the “‘economic realities’ of all the
circumstances.” Aimable, 20 F.3d at 439. Third, the factors are indicators of economic
dependence: “aids-tools to be used to gauge the degree dependence of alleged
employees on the business to which they are connected.” Usery v. Pilgrim Equip. Co.,
527 F.2d 1308, 1311 (5th Cir. 1976). “Thus, the weight of each factor depends on the
light it sheds on the farmworkers’ economic dependence (or lack thereof) on the alleged
employer, which in turn depends on the facts of the case . . . .” Antenor, 88 F.3d at 93233. Fourth, no concrete formula applies to determine the joint employment relationship.
The absence of evidence on any one or more of the factors does not preclude a joint

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employer finding. Instead, the factors must be collectively and qualitatively weighed to
assess the evidence of economic dependence.
4553).

Id. at 933 (citing House Report at

Finally, the FLSA is a remedial statute and must, therefore, be broadly

construed. Antenor, 88 F.3d at 933.
a. The Nature and Degree of Control over Plaintiffs
The first factor examines a putative employer’s power to direct, control, or
supervise a worker. “Control arises . . . when the [employer] goes beyond general
instructions . . . and begins to assign specific tasks, to assign specific workers, or to
take an overly active role in the oversight of the work.” Layton, 686 F.3d at 1178 (citing
Aimable, 20 F.3d at 441). An “overly active” role includes deciding “(1) for whom and
how many employees to hire; (2) how to design the employees’ management structure;
(3) when work begins each day; (4) when the laborers shall start and stop their work
throughout the day; and (5) whether a laborer should be disciplined or retained.”
Layton, 686 F.3d at 1178 (quoting Champion, 340 F.3d at 1209-10).
Plaintiffs assert several forms of control that allegedly indicate a joint
employment relationship. First, Plaintiffs contend that Consolidated Citrus controlled
the number of workers employed and their terms of employment by mandating that they
be hired through the H-2A program. Dkt. #101, p. 9; Dkt. #101-1, p. 4. This fact, alone,
has little bearing on whether Consolidated took an “overly active” role in the oversight of
Plaintiffs’ work. As a contractor of immigrant labor and as a prerequisite to recruiting
the H-2A workers, Ruiz Harvesting was required to show that a shortage of domestic
workers were available for the harvesting operation and that it was able to provide
housing and daily transportation to the H-2A immigrants. Dkt. #98, pp. 14, 28; Dkt

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#101-1, p. 10.3 That Consolidated Citrus sought out workers through this program does
not indicate control over the hiring process or the number of employees hired. If it did,
an employer would be deemed to have sufficient control anytime it recruited H-2A
workers through a labor contractor.
Next, Plaintiffs argue that Consolidated controlled the size of the harvesting
crews by calculating the estimated volume of fruit expected to be picked and the
number of contract laborers needed to harvest the fruit.

The record shows that

Consolidated would then speak with Ruiz Harvesting about whether it could recruit the
necessary labor to handle the expected harvest. See Shelton Dep., Dkt. #101-4, pp.
23-24, 34-37. If Ruiz was able to certify and recruit additional workers, it would ask
Consolidated whether more work was available. Id., pp. 65-66.
In similar circumstances, the Eleventh Circuit held that an employer did not
exercise sufficient control. In Aimable, the employer discerned “the amount of produce
that could be harvested and, therefore, the exact amount of work available.” 20 F.3d at
440.

However, the labor contractor determined the number of available workers,

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For instance, the following testimony by Defendant’s harvesting manager reveals that Consolidated had
little role in dictating the number of laborers hired through the H-2A program:
Q. So I understand the H-2A system, the employers, in this case the labor contractors,
have to put an application in to the government and specify the number of workers they
need?
A. Yea.
Q. How do you get the information to these labor contractors that they should bring so
many workers so they can fill their temporary labor certifications?
A. They tell me. They tell me how many they can bring, based off their housing and
transportation.
Q. Well, do you ever get a situation where they would all like to bring more, because
they figure they’ll make more money the more people they have?
A. No. They can’t bring no more than they have got transportation and housing for. And
they don’t all work solely for me.
Deposition of Delbert Gary Shelton, Jr. taken on January 26, 2012, Dkt. #101–4 (“Shelton Dep.”), pp. 3637.

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recruited those workers, and compensated them for their labor. Id. That hiring process,
which resembles the case at hand, did not indicate a joint employment relationship. Id.
Third, Plaintiffs argue that Consolidated routinely instructed Ruiz Harvesting and
its workers on the day-to-day citrus operations. To assess this claim, the Court must
distinguish between “agricultural decisions [that] . . . can not be likened to ‘control,’”
from “specific indicia of control” that go beyond general instruction and imply a joint
employment relationship.

Id. at 441.

Agricultural decisions encompass general

determinations that only indirectly affect the nature and amount of work done, such as
the overall amount of produce that must be harvested, which crops to harvest at a
particular time, and which portion of groves to harvest in light of crop damage. Id. On
the other hand, more specific and direct employment decisions indicative of a joint
employment relationship include directing specific workers to pick a certain amount of
acres in a given day or to perform specific tasks, deciding when work must begin on a
particular day, whether a worker should be disciplined, and whether the employer was
free to delay or stop the workers directly from continuing their work. Antenor, 88 F.3d at
933-34.
Here, rather than assuming an “overly active role” in the citrus picking,
Consolidated issued general instructions to Ruiz Harvesting about its harvesting
operations.

For example, Consolidated informed labor contractors of its seasonal

estimates of fruit expected from certain groves (Shelton Dep., Dkt. #101-4, pp. 23-26);
directed labor crews to enumerated citrus groves based on crew size and availability
(Dkt. #98, p. 12) (citing Shelton Dep., Dkt. #101-4, pp. 93-98); dictated when crews
should stop working on groves affected by freeze damage or because of mechanical

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failures in the harvesting plants (Dkt. #98, p. 29 (citing Deposition of Charles G. Berginc,
Jr. taken on March 27, 2012 (“Berginc Dep.”)), Dkt. #101-8, pp. 26-27; Dkt. #101-1, p.
23 (citing Shelton Dep., Dkt. 101-4, pp. 164-165)); and established certain
decontamination procedures for workers exposed to citrus canker diseases. Dkt. #101,
p. 11; Dkt. #101-1, p. 10.
As in Aimable, these types of general agricultural decisions are not indicative of
“control.” Nor are they surprising, given that Consolidated’s business is growing and
selling citrus. See Aimable, 20 F.3d at 441 (“It is not surprising that Long & Scott would
. . . give general instruction to Miller as to which crops to harvest at a particular time,” or
which fields to pick on specified days given that “Long & Scott’s business is growing and
selling vegetables.”); Howard v. Malcolm, 852 F.2d 101, 104 (4th Cir. 1988) (finding no
joint employment even though employer instructed contractor on “which portion of the
crop to harvest in light of the crop damage,” and despite a contract providing the
putative employer broad supervisory powers over the planting and harvesting of the
crops).
To be sure, Plaintiffs have pointed to some examples of control, including when
Consolidated directed certain workers to move from grove to grove as work was
completed (Dkt. #101-1, pp. 22-23) (citing Shelton Dep., Dkt. #101-4, pp. 95-96;
Deposition of Bernardo Rodriguez taken on March 27, 2012 (“Rodriguez Dep.”), Dkt.
#101-9, pp. 11-12)), and instructed others to stop work for leaving a mess or for failing
to follow proper picking practices. Dkt. #101, p. 11 (citing Rodriguez Dep., Dkt. #101-9,
p. 32; Berginc Dep., Dkt. #101-8, p. 26). See Charles, 169 F.3d at 1330 (finding control
where the employer “determined the particular fields that they wanted the [workers] to

16

cultivate, determined when the [workers] would begin picking each field, and supplied
[the workers] with boxes . . . .”); Champion, 340 F.3d at 1209-10 (noting that control
arises when a grower determines when the laborers shall start and stop their work).
However, as a whole, the record on summary judgment reflects that Consolidated was
merely ensuring that the citrus was properly picked, without involving itself with the
specifics of the task, such as the training, management, or disciplining of employees.
Therefore, the Court finds that this factor weighs against a finding of joint
employment.
b. The Degree of Supervision, Direct or Indirect, of Plaintiff’s Work
The second factor bearing on a joint-employment relationship concerns the
degree of direct or indirect supervision Consolidated Citrus enjoyed over Plaintiffs’ work.
Aimable, 20 F.3d at 441.

In an agricultural setting, supervision may “include[]

overseeing the pickers’ work and providing direction, while keeping in mind ‘special
aspects of agricultural employment.’” Charles, 169 F.3d at 1330 (quoting Antenor, 88
F.3d at 934-35). For example, “the grower is not expected to look over the shoulder of
each farmworker each hour of every day.” Antenor, 88 F.3d at 935. Thus, “[i]t is well
settled that supervision is present whether orders are communicated directly to the
laborer or indirectly through the contractor.” Id. However, “[i]nfrequent assertions of
minimal oversight,” do not satisfy the supervision necessary under this factor. Id.
In this case, the evidence indicates that Consolidated Citrus supervised Plaintiffs
in substantial ways. Consolidated enlisted the help of harvesting supervisors and other
personnel to roam and inspect the citrus groves, (Dkt. #101-1, p. 23); to direct incoming
laborers to particular groves, (Berginc Dep., Dkt. #101-8, p. 11); to assign laborers to

17

new groves as each section was sufficiently cultivated; (Dkt. #101-1, p. 10 (citing
Rodriguez Dep., Dkt. #101-9, pp. 11-12; Berginc Dep., Dkt. #101-8, pp. 11-12)); and to
conduct quality inspections designed to minimize the workers’ poor picking practices.
Dkt. #101-1 at 11 (citing Rodriguez Dep., Dkt. #101-9, pp. 15-18).

In addition,

Consolidated’s harvesting supervisors regularly communicated with Ruiz Harvesting
and other contractors regarding Plaintiffs’ work. Dkt. #101-1, pp. 23-24; see Charles,
169 F.3d at 1330 (“[S]upervision is present whenever orders are communicated directly
to the laborer or indirectly through the contractor.”).
Thus, while some of the incidents described above do not necessarily indicate
direct control over the workers, their employment, or their management structure, they
do reflect “supervision more substantial than the ‘infrequent assertions of minimum
supervision,’ by the grower in Aimable,” who “except on rare occasions, left supervision
and oversight of [the farmworkers] entirely to [the contractor] and his crew and ‘rarely
provided any direction to [the farmworkers] work.’” Antenor, 88 F.3d at 935 (quoting
Aimable, 29 F.3d at 441).
Consolidated responds that Plaintiffs were unaware of Consolidated or its role in
the harvesting process and that only the equipment operators employed by Ruiz
Harvesting were seen supervising their work.

See Dkt. #98, pp. 18-19 (citing e.g.,

Deposition of Ernesto Aguilar-Bocanegra taken on June 20, 2011, Dkt. #55-14, p. 44;
Deposition of Antonio Martinez-Martinez taken on June 24, 2011, Dkt. #98-9, p. 8;
Deposition of Miguel Sanchez-Morales taken on June 22, 2011, Dkt. #98-10, pp. 41-42;
Deposition of Israel Ugalde-Eguia taken on June 23, 2011, Dkt. #98-13, p. 53).
Regardless of whether Plaintiffs were cognizant of the supervision, the record clearly

18

demonstrates that Consolidated personnel monitored and supervised the workers either
directly or indirectly through Ruiz Harvesting. Luna v. Del Monte Fresh Produce (Se.),
Inc., No. 1:06-CV-2000-JEC, 2008 WL 754452, at *4 (N.D. Ga. Mar. 19, 2008)
(concluding that plaintiffs’ awareness of the supervision was irrelevant to the degree of
supervision exercised).
For these reasons, the Court holds that this factor weighs in favor of finding joint
employment.
c. The Authority to Directly or Indirectly Hire, Fire, or Modify Plaintiffs’
Employment Conditions
Next, the Court must examine Consolidated’s power to directly or indirectly, hire,
fire, or modify Plaintiffs’ employment conditions. Aimable, 20 F.3d at 442. Plaintiffs
argue that Consolidated indirectly controlled Plaintiffs’ employment by determining when
the harvesting season began, where it took place, how long it would last, and how many
workers were needed to harvest a specific grove. Dkt. #101, p. 12 (citing Dkt. #101-1,
p. 22).
As an initial matter, some of Plaintiffs’ assertions are not consistent with the
record. For example, Plaintiffs cite to the Deposition of Delbert Gary Shelton, Jr., the
harvesting area manager for Consolidated Citrus, to assert that Consolidated instructed
Ruiz Harvesting on when the harvest would begin and the number of workers needed to
cultivate a specific block on a daily basis. Dkt. #101-1, p. 22. However, the record cited
merely reflects that before each harvesting season, Ruiz Harvesting and other labor
contractors informed Mr. Shelton of the number of workers they expected to hire

19

through the H-2A program. Consolidated would then determine whether enough work
existed based on its seasonal estimates of the expected yield of citrus.4
Moreover, Plaintiffs’ remaining assertions of general authority over the harvesting
operation and its indirect impact on the hiring process are less substantial than
instances where courts have found economic dependence. For example, in Antenor,
the employer indirectly controlled the employment conditions of the workers where it
had the power to “veto” the contractor’s hiring decisions, dictate the workers’ specific
hours, decide when the work was to begin each day, force the workers to stop
harvesting when prices were bad, and substitute its own workers in fields assigned to
the contract laborers. 88 F.3d at 935. Similarly in Charles, economic dependence was
found where the employer decided when the workers needed to cultivate the crop,
where they would pick it, and for how long. 169 F.3d 1330-31. Cf. Champion, 340 F.3d
at 1212 (rejecting plaintiffs’ argument that defendant possessed the power to modify

4

Mr. Shelton’s deposition testimony stated the following (Dkt. #101-4, p. 65-66 ):
Q. Well, okay. But if I’m one of your contractors, let’s say Mr. Ruiz in prior years, do you
let Mr. Ruiz know in advance that you’re going to have the same number of loads as last
year, more or less? How does that work?
A. He would tell me how many people that he’s got housing for, like I had said before.
Q. Okay.
A. And according to my matrix, he may say, “Can I bring 60 people?”
Q. Okay. Well, for example, one year in this particular situation, Mr. Ruiz roughly
doubled the number of workers he brought. And his workers worked exclusively for
Consolidated.
A. Okay.
Q. Or on Consolidated’s groves.
A. Okay.
Q. And that’s something he might come to you and say, I’d like to bring – I have housing
for twice as many people as I did last year, can you use me for that? Is that the kind of
conversation you might have him with?
A. I might, yes, sir.

20

their employment conditions because of the employer’s contractual right to stop planting
due to adverse weather or pool soil conditions).5
In contrast, here, Ruiz Harvesting had near exclusive authority to hire and fire the
workers (Dkt. #98, p. 13; Shelton Dep., Dkt. #101-4, pp. 34-37; 65-66) and to determine
when work began and ended. Berginc Dep., Dkt. #101-8, pp. 71-72. There is no
evidence that Consolidated mandated that a particular individual be hired or fired, that it
dictated the hours of any given employee, or that it changed the pay classification or
benefits of any laborer. Compare Aimable, 20 F.3d at 442 (finding no dependence
where grower did not dictate the hours or working conditions of laborers) with Hodgson
v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 237 (5th Cir. 1973) (finding
dependence where field supervisors instructed contractors to begin work at a certain
hour and assigned them certain rows or patches to harvest each day).
For these reasons, this factor weighs against a finding of a joint employment.
d. The Power to Determine Pay Rates or Methods of Payment
The next factor is the degree to which Consolidated Citrus is authorized to
determine Plaintiffs’ pay rates or the methods of payments. Aimable, 20 F.3d at 442-43.
The Court cannot assess this factor on summary judgment.
Plaintiffs declare that Consolidated directly or indirectly established two pay rates
prior to the start of each harvest season and before each grove of citrus was cultivated.
First, through its harvesting supervisors, Consolidated determined the picking price or
5

Plaintiffs argue that Consolidated had an effective “veto” over Ruiz Harvesting’s employment decisions
by requiring that the workers participate in the H-2A immigration program. This is not the form of veto
contemplated by Antenor. There, the employer had the power to monitor the workers’ job qualifications
and to ensure that they complied with the relevant immigration laws. Antenor, 88 F.3d at 935.
Consolidated has no such authority. As explained above, Ruiz Harvesting was independently responsible
for recruiting workers through the H-2A program and for complying with the relevant labor certification
requirements.

21

pick rate to be paid to each worker hired by Ruiz Harvesting. Dkt. #101-1, p. 12 (citing
Deposition of Christopher Reyes, taken on March 27, 2012 (“Reyes Dep.”), Dkt. #101-7
at 32). The pick rate was determined by an internal chart developed by Consolidated
based on historical data regarding previous yields of citrus. Dkt. #101-1, p. 12 (citing
Shelton Dep., Dkt. #101-4; Ex. 20; Bergnic Dep., Dkt. #101-8). Second, Consolidated
set forth a roadside rate to be paid to Ruiz Harvesting, which reflected the labor
contractor’s profit and overhead, and was directly correlated with the pick rate – as the
pick rate increased, so did the roadside rate. Dkt. #101-1, p. 12. According to Plaintiffs,
before the harvesting began, Consolidated provided Ruiz Harvesting with the
appropriate pick rate for each specific grove. Id. (citing Reyes Dep., Dkt. #101-7, pp.
34-36). If Ruiz Harvesting disagreed with the pick rate, it could request that the pick
rate be adjusted. Id. at 13. Plaintiffs contend that the final price of the pick rate was
ultimately determined by Consolidated Citrus. Id. (citing Berginic Dep., Dkt. #101-8, p.
50; Reyes Dep., Dkt. #101-7, pp. 37-38).
In contrast, Consolidated points to portions of the record that suggest Ruiz
Harvesting determined the pick rate price and occasionally paid its workers at different
rates than the overall roadside rates offered by Consolidated. See, e.g., Dkt. #98, pp.
30-31 (citing Affidavit of Michael J. Bartos (“Bartos Aff.”), dated March 11, 2012 Dkt.
#99-1, p. 2); Dkt. #98, p. 13 (citing Deposition of Michael J. Bartos (“Bartos Dep.”),
taken on June 10, 2011, Dkt. #101-5, pp. 92-93).6

6

For instance, Mr. Bartos, the Director of Human Resources for Consolidated Citrus, testified to the
following (Bartos Dep., Dkt. #101-5, pp. 92-93):
Q. Well, okay. Who figures out the compensation?
A. Gary Shelton does out in the field. He determines what the – what the rate is going to
be.

22

Accordingly, the Court finds that there is a genuine issue of fact regarding
whether Consolidated or Ruiz Harvesting determined the pay rates for the workers.
Thus, for summary judgment purposes, the Court excludes this factor from its joint
employment analysis.
e. Consolidated’s Preparation of Payroll and Payment of Plaintiffs’ Wages
Consolidated did not prepare or issue Plaintiffs’ payroll checks. Instead, Ruiz
Harvesting completed its payroll using its own payroll processing company, issued its
own checks, paid the applicable taxes, and provided workers compensation insurance.
Dkt. #98, p. 34.
Plaintiffs argue that Consolidated conducted random audits of and indirectly
controlled the workers’ wages through its electronic time-keeping system, which
required that Ruiz Harvesting pay Plaintiffs’ wages through a direct bank deposit and to
submit a payroll report showing the amount of wages paid to each worker. Dkt. #101, p.
15. However, the time-keeping system merely generated raw data that was used by
Ruiz Harvesting to create weekly payroll records. Dkt. #98, pp. 16-17; Bartos Aff., Dkt.
#99-1, pp. 5-6. Thus, the record on summary judgment shows that Ruiz Harvesting was
ultimately responsible for compensating Plaintiffs. For these reasons, this factor weighs
against a joint employment relationship.
Q. Well, he determines what the piece-rate to the picker is, doesn’t he, or does he
determine some other rate?
A. Oh he says, I’m going – to the contractor, I’m going to pay you 1.45 or 1.50 to pick
this fruit.
Q. Okay. So let’s say he says – this grove is a little tougher grove, using this as an
example. I’m going to pay 1.50, which is eight cents above what is stated here. Then
how is the pick rate adjusted?
A. The contractor pays whatever he wants for the pick rate.
Q. Well, Mr. Ruiz testified in his deposition that he is told the pick rate by the harvesting
supervisor, so I’m trying to figure out how this happens. Is your understanding something
different?
A. My understand is we – we offer the contractor a – what I call roadside.

23

f. Whether the Work Was Performed on Consolidated’s Premises
This factor is probative of joint employment because “without the land, the worker
might not have work, and because a business that owns or controls the worksite will
likely be able to prevent labor law violations, even if it delegates hiring and supervisory
responsibilities to labor contractors.” Antenor, 88 F.3d at 937. The parties agree that
Plaintiffs worked exclusively on Consolidated’s premises. Thus, this factor weighs in
favor of a joint employment relationship.
g. Whether Plaintiffs’ Work Was Integral to Consolidated’s Business
This factor assesses whether Plaintiffs’ activities are integral to Consolidated’s
overall harvesting operation and “[are] probative of joint employment because a worker
who performs a routine task that is a normal and integral phase of the grower’s
production is likely to be dependent on the grower’s overall production process.”
Antenor, 88 F.3d at 937.

Consolidated does not dispute that picking citrus is an

essential part of its business.

This factor weighs in favor of a joint employment

relationship.
h. Consolidated’s Investment in Equipment and Facilities
Finally, this Court must consider the relative degree of investment in equipment
and facilities by Ruiz Harvesting and Consolidated Citrus. See Rutherford Food Corp.,
331 U.S. 722, 730 (1947); Antenor, 88 F.3d at 937, n. 15 (concluding that even though
Aimable found this factor irrelevant to its joint employment inquiry, it stopped short of
holding that it never is relevant in joint employment cases). “This factor is probative
because of the workers’ economic dependence on the person who supplies the
equipment and facilities.” Antenor, 88 F.3d at 937.

24

Neither party specifically briefed this section because both sides assumed until
after the Summary Judgment motions were filed that Charles and its seven factor test
controlled. Charles examined an employer’s investment in equipment and facilities, but
only as one of several indicators of its seventh factor – whether an employer undertook
responsibilities in relation to the workers that employers commonly perform.

See

Charles,169 F.3d at 1333; Champion, 340 F.3d at 1214. As a result, this factor does
not aid our joint-employment analysis.
Overall, on summary judgment grounds, this Court is unable to make a final
determination of whether Consolidated Citrus “jointly employed” Plaintiffs. Some factors
favor Plaintiffs: the degree of supervision exercised by Consolidated Citrus, that
Plaintiffs’ work was performed on Defendant’s premises, and that the work was integral
to Defendant’s citrus operation.

Others favor Defendant: the lack of actual control

exercised over the workers, the absence of authority to hire, fire, or alter the
employment conditions of the workers, and that Defendant did not prepare payroll or
pay the workers.

The two remaining factors cannot be determined on summary

judgment: Consolidated’s power to determine pay rates or methods of payment, and its
relative investment in the equipment and facilities used in the harvesting operations.
The authority to determine pay rates and methods of payment is especially probative
here because Plaintiffs’ claims rely, in large part, on an alleged kickback scheme
utilized by Ruiz Harvesting to deny minimum wage to the workers.
As a result, the Court denies both parties’ summary judgment motions on the
joint employment issue.

25

B. Breach of Contract Claims
1. Whether Layton’s Joint Employment Analysis Applies to Plaintiffs’ Breach of
Contract Claims
Plaintiffs’ Summary Judgment Motion attempts to impute liability on Consolidated
Citrus under both the FLSA and the H-2A regulations governing their breach of contract
claims. Even though the Court is unable to resolve the joint employment issue on
summary judgment, we must still determine whether Aimable’s “joint employment”
analysis applies to Plaintiffs’ breach of contract claims.
The parties’ summary judgment motions assume that the “joint employment”
analysis is the same under the FLSA and their breach of contract claims. In other
words, they maintain that a common definition of “employ” applies to Plaintiffs’ claims
under the FLSA and the H2A regulations. That is not the case.
As explained earlier, the joint employment inquiry is predicated on the “suffers or
permits to work” language found in the FLSA and the AWPA. See Aimable, 20 F.3d at
438. The parties assume correctly that because the H-2A regulations adopt the “suffers
or permits to work” language, a joint employer under the FLSA is deemed to be an
“employer” under the H-2A contracts. See Salazar-Calderon v. Presidio Valley Farmers
Ass’n, 765 F.2d 1334 (5th Cir. 1985) (labor contractor that petitioned for H-2A guest
workers and individual growers who used H-2A workers’ services were joint employers);
Hernandez v. Two Bros. Farm, LLC, 579 F. Supp. 2d 1379, 1383 (S.D. Fla. 2008)
(noting that “the [H-2A] regulations contemplate that an employee may have joint
employers”); Guijosa-Silva v. Wendell Roberson Farms, Inc., No. 7:10-CV-17 (HL),
2012 WL 860394, at *19 (M.D. Ga. Mar. 13, 2012) (concluding that the
employer/employee relationship under the H-2A contracts are almost identical to the

26

standards set by the FLSA). However, a closer look at the H-2A regulations reveals
that for one of the harvest seasons at issue, the Department of Labor materially
changed the definitions of “employer” and “employee.”
Plaintiffs’ allegations relate to four harvest seasons during which workers were
employed by Ruiz Harvesting to pick citrus on Consolidated’s farms: 2006-07, 2007-08,
2008-09, and 2009-10 seasons. The 2006 H-2A regulations, first implemented in 1987,
define “employer” as:
[A] person, firm, corporation or other associate or organization which
suffers or permits a person to work and (1) which has a location within the
United States . . . and (2) which has an employer relationship with respect
to employees under this subpart as indicated by the fact that it may hire,
pay, fire, supervise or otherwise control the work of any such employee . .
. . Such an association, however, shall be considered as a joint employer
with an employer member if it shares with the employer member on or
more of the definitional indicia.
20 C.F.R. § 655.100(b) (2006). In December 2008, the H-2A regulations were modified
and the term “employer” was revised to read:
Employer means a person, firm, corporation or other associate or
organization that (1) has a place of business . . . in the U.S. . . . ; (2) Has
an employer relationship with respect to H-2A employees or related U.S.
workers under this subpart . . . .
20 C.F.R. § 655.100(c)(2009). The regulations also added the term “employee”:
Employee means employee as defined under the general common law of
agency. Some of the factors relevant to the determination of employee
status include: the hiring party’s right to control the manner and means by
which the work is accomplished; the skill required to perform the work; the
source of the instrumentalities and tools for accomplishing the work; the
location of the work; the hiring party’s discretion over when and how long
to work; and whether the work is part of the regular business of the hiring
party. Other applicable factors may be considered and no one factor is
dispositive.

27

Id. Significantly, the 2009 H-2A regulations omitted the “suffers or permits to work”
language from the definition of “employer” and specified that the term “employee” was
defined under the general common law of agency. And while the 2009 regulations set
forth a series of factors to consider under the agency analysis, which resemble the
Aimable factors, the two analyses are different.
As the Supreme Court made clear, the FLSA’s definition of “employee” to mean
“suffers or permits to work,” is striking in its breadth and “stretches the meaning of
‘employee’ to cover some parties who might not qualify as such under a strict
application of traditional agency law principles.” Nationwide Mut. Ins. Co. v. Darden,
503 U.S. 318, 325-26 (1992).7 Moreover, the Eleventh Circuit has reiterated that in
considering the joint employment relationship in the FLSA context, “we must not allow
common-law concepts of employment to distr[a]ct our focus from economic dependency
. . . . Indeed, the ‘suffers or permits to work’ standard was developed to assign
responsibility to businesses that did not directly supervise putative employees.”
Antenor, 88 F.3d at 933.
Therefore, because the H-2A regulations were modified to remove the “suffers or
permits to work” language in December 2008, Aimable’s joint employment analysis only
applies to workers employed before the changes were made. The record shows that
the clearance orders that function as Plaintiffs’ employment contracts for the 2007-08
and 2008-09 seasons were signed on September 10, 2007 and July 16, 2008
7

In fact, the explanatory guidelines of the most recent H-2A regulations explain that the terms “employer”
and “employee” were previously defined under common law agency principles. They further note that
because the common law test and the analysis applicable to the “suffers or permits to work” language are
distinct, the regulations removed the “suffers or permits to work” language to clarify that agency principles
should dictate an employee-employer relationship. See Temporary Agricultural Employment of H-2A
Aliens in the United States, Modernizing the Labor Certification Process and Enforcement, 73 FR 77110,
77197 (2008).

28

respectively. See Dkt. #55-2, p. 9; Dkt. #55-3, p. 9. The clearance order for the 200910 harvest season does not bear a date of execution. See Dkt. #55-4. For these
reasons, the Court concludes that while Aimable’s joint employment analysis applies to
the breach of contract claims relating to the 2007-08 and 2008-09 harvest seasons, the
same cannot necessarily be said for the 2009-10 season.8
C. Minimum Wage Claims Under the Florida Constitution and the FMWA
In Count VI of their Amended Complaint, Plaintiffs assert violations of the
minimum wage provisions of Article X, Section 24 of the Florida Constitution.
Consolidated Citrus seeks dismissal based on Plaintiffs’ failure to provide pre-suit notice
of their intent to bring a claim for unpaid minimum wages as required by the FMWA – an
enabling act to Article X, Section 24. See Fla. Stat. Ann. § 448.110(6)(a).
On November 2, 2004, the Florida electorate passed an amendment to the
Florida Constitution, Article X, Section 24, which provides that all working Floridians are
entitled to a minimum wage adjusted each year to account for inflation and a variety of
wage indexes. Fla. Const. art. X, § 24(c). Subsection (e) of the Amendment authorizes
employees to bring a civil action to enforce the provisions of Section 24 and subsection
(f) provides that implementing legislation is not required to enforce the constitutional
provision but that the “state legislature may by statute . . . adopt any measures
appropriate for the implementation of this amendment.” Id. § 24(e), (f). Accordingly, on

8

On March 29, 2013, the Court directed the parties to submit supplemental briefings regarding this issue
and on whether Aimable or Charles controlled the joint-employment inquiry. Dkt. #153. Plaintiffs’
Supplemental Brief Regarding Employer Status of Consolidated Citrus Limited Partnership (Dkt. #156,
pp. 8-9) appears to acknowledge that the H-2A contracts relating to the 2009-10 harvest season must be
examined under agency principles and the factors set forth in the regulations’ definition of “employee”. To
the extent that the clearance order applicable to the 2009-10 harvest season was signed after the 2009
H-2A regulations went into effect, this Court agrees. However, the Court will defer ruling on this matter.

29

December 12, 2005, the Florida legislature passed the FMWA in order to implement the
minimum wage requirements of Article X, Section 24. See Fla. Stat. Ann. § 448.110(2).
The FMWA mimics Section 24 but adds a few provisions, including the
requirement that an aggrieved party must provide written pre-suit notice of the intent to
initiate an action. Id. § 448.110(6)(a). The notice must identify the minimum wage due,
the actual or estimated work dates and hours for which payment is sought, and the total
amount of unpaid wages through the date of the notice. Id. The employer shall then
have fifteen calendar days after receipt of the notice to pay the unpaid wages due or
otherwise resolve the claim to the satisfaction of the person aggrieved.

Id. §

448.110(6)(b).
The question is whether Plaintiffs, who have filed suit under Article X, Section 24
must nonetheless abide by the notice requirement of the FMWA. Florida courts are split
on this issue. Plaintiffs urge this Court to follow Throw v. Republic Enter. Sys. Inc., No.
8:06-cv-724-T-30TBM, 2006 WL 1823783, at *2 (M.D. Fla. June 30, 2006), which
concluded that the notice provision of the FMWA prohibitively restricts a right
guaranteed by the Florida Constitution - the right to bring suit to recover unpaid
minimum wages. After acknowledging it as a “close question,” Throw explained that
subsection (f) of the Florida Amendment creates an independent constitutional right to
bring suit to recover unpaid minimum wages by providing that “[i]mplementing
legislation is not required to enforce this amendment.” Id. Thus, the FMWA’s notice
provision unconstitutionally interferes with Section 24 by obstructing an aggrieved
party’s right to seek relief. Id. Accordingly, the court held that plaintiff did not need to

30

satisfy the notice requirements of the FMWA in order to allege a violation of Article X,
Section 24. Id.
The Court in Resnick v. Oppenheimer & Co. Inc., No. 07-80609-CIV, 2008 WL
113665, at *2 (S.D. Fla. Jan. 8, 2008) disagreed and upheld the validity of the FMWA’s
15-day notice requirement. Resnick held that although subsection (f) declares that no
implementing legislation is necessary, it goes on to emphasize that the “state legislature
may by statute . . . adopt any measures appropriate for the implementation of this
amendment.” Id. (citing Fla. Const. art. X, § 24(f)). Thus, while the Florida electorate
aimed to independently ensure a worker’s constitutional right to a minimum wage, the
people of Florida nevertheless “authorized the legislature, in its wisdom, to enact
legislation that would implement the constitutional right.” Resnick, 2008 WL 113665, at
*2. Accordingly, the court reasoned that because the 15-day notice requirement does
not “prevent an individual from enforcing his right under the Florida Constitution,” the
notice requirement is valid and constitutional. Id. at *3.
This Court respectfully disagrees with Throw and adopts the conclusion reached
by Resnick, and later followed in Dominguez v. Design by Nature Corp., No. 08-20858Civ, 2008 WL 4426721 (S.D. Fla. Sept. 25, 2008) and Ramirez v. Martinez, No. 0821863-CIV, 2009 WL 199786 (S.D. Fla. Jan. 23, 2009); but see Bates v. Smuggler’s
Enters. Inc., No. 2:10-cv-136-FtM-29DNF, 2010 WL 3293347, at *4 (M.D. Fla. Aug. 19,
2010) (concluding that while the FMWA’s notice provision is constitutional, a claim
under article 24 need not comply with the statute’s notice requirement). The Florida
Supreme Court has explained that where there is a self-executing constitutional cause
of action, “the Legislature may provide additional law addressing a self-executing

31

constitutional scheme assuming that such laws supplement, protect, or further the
availability of the constitutionally conferred right, but the Legislature may not modify the
right in such a fashion that it alters or frustrates the intent of the framers and the
people.” Browning v. Fla. Hometown Democracy, Inc., PAC, 29 So.3d 1053, 1064 (Fla.
2010). The FMWA does not frustrate the intent of Section 24. It provides employers a
means to more quickly resolve wage disputes before a lawsuit is filed. Moreover, the
workers’ rights are protected because the statute of limitations is tolled during the 15day notice period. Fla. Stat. § 448.110(6)(b). In effect, the legislature has regulated the
method of the Amendment’s enforcement as it is expressly authorized to do by the
constitutional provision. Thus, the FMWA aims to protect both the employer and the
employee, by ensuring the right to seek relief for unpaid minimum wages while
protecting employers from being unfairly inundated with lawsuits. This dual focus on the
employer and the employee is consistent with the Amendment’s public policy section,
which provides that both employees and employers stand to benefit from the
implementation of the Amendment because employees are protected by an assurance
that they will be paid a minimum wage that is “sufficient to provide a decent and healthy
life,” while employers benefit because the minimum wage requirement protects them
“from unfair low-wage competition . . . .” Fla. Const. art. X, § 24(a). This Court’s
conclusion is buttressed by its obligation “to construe a statute in such a way as to
render it constitutional if there is any reasonable basis for doing so.” Aldana v. Holub,
381 So. 2d 231, 237-38 (Fla. 1980).
In addition, construing the FMWA and the Amendment, as the Bates court did, to
provide separate causes of action – one with a notice requirement and one without –

32

ignores the purpose of the FMWA as an implementing legislation to the Amendment.
See Bates, 2010 WL 3293347, at *4 (holding that the FMWA “is not the exclusive
remedy to enforce the constitutional provision,” and that a cause of action under Section
24 does not need to adhere to the notice requirement).

Prior to the FMWA, the

Amendment served as the sole means of providing a cause of action to enforce the right
to receive minimum wages. Once the FMWA was enacted, it supplemented Article 24,
which could no longer be viewed in isolation from its implementing legislation. Section
448.110(10) specifies that the legislation “shall constitute the exclusive remedy under
state law for violations of s. 24, Art. X of the State constitution.” Allowing a cause of
action to proceed under the Amendment without meeting the notice requirement
renders Section 448.110(10) and the FMWA meaningless.
Accordingly, because Plaintiffs did not comply with the FMWA’s pre-suit notice
requirement, Plaintiffs’ minimum wage claim under the Florida Constitution (Count VI) is
dismissed and Defendant’s Summary Judgment Motion is granted on this issue.
Accordingly, it is now
ORDERED:
(1) Consolidated Citrus L.P’s Case Dispositive Motion for Summary Judgment,
Statement of Undisputed Facts and Supporting Memorandum of Law (Dkt.
#98) is GRANTED in part and DENIED in part as follows:
a. As to Count VI, the Motion is GRANTED and Count VI is dismissed.
b. As to the remaining Counts, the Motion is DENIED.
(2) Plaintiffs’ Motion for Summary Judgment and Supporting Memorandum of
Law Against Consolidated Citrus Limited Partnership (Dkt. #101) is DENIED.

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DONE and ORDERED in Fort Myers, Florida this 22nd day of July, 2013.

Copies: All Parties of Record

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