Hernandez-Hernandez et al v. Hendrix Produce, Inc. et al

Filing 101

Consent Order and FLSA Fairness Determination. Signed by Judge B. Avant Edenfield on 10/9/14. (wwp)

A

I

Case 6:13-cv-00053-BAE-GRS Document 97-1 Filed 09/10/14 Page 2 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
:

SERGTO HERNANDEZ-HERNANDEZ, et a]., and
all others similarly situated,

-

Plaintiffs,
CIVIL ACTION NO:

HENDRIX PRODUCE, INC., et al.,
Defendants.

CONSENT ORDER & FLSA FAIRNESS DETERMINATION
Plaintiffs and Opt-In Plaintiffs (hereinafter collectively referred to as "Plaintiffs") and
Defendants Hendrix Produce, R.E. Hendrix ("Hcndrix Defendants") and Yesenia Merino
("Defendant Merino") (collectively 'Defendants") agree to resolve all disputes and enter into
the following Consent Order:
I. For purposes of this agreement, "Plaintiff' is composed of the following
individuals: Sergio Hernandez-Hernandez, Braulio Hernandez-Hernandez, J.
Ascencion Perez-Sanchez, Martin Juarez-Briceno, Santos Hernandez-Aniceto,
Daniel Zarazua-Rubio, Alejandro Romero-Garcia, Alejandro Mateo-Hernandez,
Valerio Martinez-Garcia, Fideneio Hernandez-Hemandez, Angel HernandezRivera, Francisco Javier Rojo-Hernandez, Octavio Hernandez-Hernandez,
Clemente Morales-Arcadia, Carlos Francisco Flernandez-Rojo, Antonio
Hernandez-Hernandez, Juan Pablo Romero-Cortez, Genaro Brigido-I-Iernandez,
Jonatan Bautista-Martinez, Oscar Ranios-Vasquez, Elicco Perez-Gomez,
Celestino Enrique-Benita, Douglas Perez-Perez, Pedro Perez-Lucas, Tomas
Munoz-Martinez, Moises Land averde-Hemandez, Luis Lugo-G-ui 1 len, Nigucr
1

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Case 6:13-cv-00053-BAE-GRS Document 97-1 Filed 09/10/14

Page 3 of 9

Yovani Martinez-Lopez, Juan Pedro Hernandez-Ramos, and Raul RamirezValencia.

2. It is understood and agreed that the Court shall enter this agreement as a Consent
Order and the parties condition their agreement on the Court's retention of
jurisdiction for a period of two years to enforce the terms of this agreement. The
parties agree to use their best efforts to obtain entry of this Consent Order by the
Court.

3. Upon receiving payment as described in paragraph 3 below, Plaintiffs will file a
notice to inform the Court that the judgment may be marked as satisfied.

4. Defendants agree to entry of udgment in the amount of sixty-three thousand,
eight hundred and seventy-two dollars ($63,872). The judgment amount shall be
made payable to the Georgia Legal Services Program, Client Trust Account for
the benefit of the Plaintiffs and Opt-in Plaintiffs, as detailed in Exhibit A. An
additional thirty-eight thousand three hundred and fifteen dollars ($38,315) is
payable as attorney's fees ($19,315) and costs (S 19,000) and shall he made
payable to Georgia Legal Services Program. Both payments shall be received in
Atlanta by Plaintiffs' counsel within 15 days after execution of this agreement by
counsel,

5. The portions to each Plaintiff and Opt-In Plaintiff are attached as Exhibit A to this
Agreement & Order.

6. Defendants agree to comply with the FLSA and the H-2A program regulations
and the specific sections at issue in this lawsuit, including the following
description of what costs are to be reimbursed in the first workweek:
a.

Defendants will properly record and compensate for all compensable work
performed in the field or packing shed, including all compensable time
spent planting or harvesting, time spent traveling between fields or work
2

Case 6:13-cv-00053-BAE-GRS Document 97-1 Filed 09/10/14 Page 4 of 9

locations, and time workers are engaged to wait, under either or both the
highest applicable wage rate of the Fair Labor Standards Act, 29 U.S.C. §
206(a), and the 11-2A program's Adverse Effect Wage Rate, 20 C.F.R. §
655.103(b) and 655.122(1);
b.

Defendants will specifically make, keep and preserve the start and stop
time for all workers and will record the actual start and stop times of any
non-compensable meal breaks in accordance with 29 C.F.R. § 785.18;

C.

Defendants will comply with their Fair Labor Standards Act's obligations
to reimburse in the first work week of each season each worker who has
incurred costs to come to work for the employer, including transportation
costs (both travel and subsistence expenses), lodging costs, visa and visa
application fees, recruitment and processing fees; and

d.

Defendants will comply with the contractual requirement that if the
employee's total pay for the pay period from piece rate earnings divided
by his total hours worked at piece rate during that pay period results in
average hourly earnings of less than the guaranteed AEWR (20 C.F.R. §
655.122(I)(2)) hourly rate, the worker will be provided build-up pay to the
guaranteed AEWR minimum hourly rate.

7. Defendant Hendrix Produce, Inc. agrees to take all necessary steps to meet their
farmworker hiring needs for the full onion harvest through the I-l-2A program in
2015 and 2016 with job orders submitted in the name of an entity controlled by
Hendrix Produce, Inc. and/or R.E. Hendrix, but not under the name of a labor
contractor.
8. Hendrix Defendants agree to change the recruitment, time recording, and payroll
process so that Defendant Merino and Oswaldo Rea do not recruit for,
recommend for, or prepare the list of workers to return, and alter the time and
work recording system so that Defendant Merino and Oswaldo Rea do not record
work, engage in timekeeping, or otherwise have involvement in determining the
amount of compensation workers receive.

Case 6:13-cv-00053-BAE-GRS Document 97-1 Piled 09/10114 Page 5 of 9

a.

Defendants agree to alter the recruitment system for 2015 and 2016
in the following two ways:
i.

Defendants shall provide a signup sheet at the farm, not

controlled by supervisors, prior to the end of each season to allow workers to sign
up to return for the subsequent season; and
ii.

Plaintiffs' counsel will provide a returning worker form

which workers may fax to Defendants' counsel to be included on the list of
workers to return.
b.

Defendants agree to rehire any Plaintiff who applies for work
according to either of the two methods described above for 2015
and 2016.

9. To prevent workers from being forced to pay large hiring, processing or
application fees in Mexico or Guatemala, Defendants agree to use a recognized
service or persons for recruiting workers and preparing visa application forms,
and to compensate this service directly; Defendants further agree to bar the
service or persons from charging workers any additional recruitment fee.

10. Hendrix Defendants will issue all necessary reimbursement payments to H-2A
workers directly and will not seek to recover the reimbursement from the workers.
II. Defendants will not retaliate or discriminate against any worker in violation of 29
U.S.C. § 21 5(a)(3) or 20 C.F.R. § 655.135(h).

12. Hendrix Defendants will provide, on a weekly basis, Plaintiffs' attorney with the
payroll records for the field workers employed by .Hendrix Produce, Inc. and/or
R.E. Hendrix or an entity controlled by either, during 2015 and 2016.
13. For 2015 and 2016, Defendants agree to rehire any Plaintiff who requests work
for the harvest season.

4

Case 6:13-cv-00053-BAE-GRS Document 974 Filed 09/10/14 Page 6 of 9

14. This Consent Order constitutes the entire agreement between and among the
parties, and no change or additional term shall have any force or effort unless
written and signed by all parties or their authorized counsel and entered by the
Court. No oral understandings, statements, promises or inducements contrary to
the terms of this agreement exist,
15. Plaintiffs further agree that they hereby release and discharge any other claims
which could have been brought relating to their pay or reimbursements while
employed by Defendants or which necessarily should have been brought as part of
the claims asserted in this suit. In addition, Plaintiffs Juan Pedro HernandezRamos and Raul Ramirez-Valencia release their 2013 pay and reimbursement
claims.

16. This Consent Order is to be construed and governed under the laws of the state of
Georgia and shall bind the parties and their respective heirs, estates, successors,
assigns, and affiliates,

17. If any provisions are determined by a court of competent jurisdiction to be invalid
or unenforceable, the remaining provisions shall continue in full force and effect
except: 1) that if the settlement is not approved as a fair and reasonable resolution
then this agreement is voidable at the election of either party, and 2) that the
Court's retention of jurisdiction, as described in Paragraphs 1-2 above, is a nonseverable term of this agreement and the Court's failure to retain jurisdiction for
the purpose of enforcing this agreement shall render this agreement void for all
purposes.
1 S. Respective counsel for the parties have express authority to enter into this
Consent Order on behalf of their clients, pursuant to O.C.G.A. § 15-19-5.
Having scrutinized the settlement and determined that the settlement is fair and
reasonable under Lynn's Food Stores, Inc. v. United States, 679 F.2d 1.350 (11th Cir.

Case 6:13-cv-00053-BAE-GRS Document 97-1 Filed 09/10/14 Page 8 of 9

——
E ~( ~~L ~ ~k
Lest name
I Hernandez-Hernandez

First name
Sergio

Year
2012
2011
2010

Total damages

$

5,036.00

$

5,036.00

$

5,005.91

2,779.78

2009
2 Hernandez-Hernandez

Braulia

2012
2011
2010
2009

3 Perez-Sanchez

J. Ascencion

2012
2011
2010
2009

4 Jaurez-Briceno

Martin

2012
$
2 010

5 Hernandez-Aniceto

Santos

2012
2011

6 Zarazua-Rubio

Daniel

2012
2010

7 Romero-Garcia

Alejandro

2012
2010

$

2,447.32

$

1,802.23

$

2,030.31
1,848.67

S Mateo-Hernandez

Alejandro

2012
$
2011

9 Martinez-Garcia

Valerio

2012 $
2012 $

10 Hernandez-Hernandez

Fidenclo

11 Hernandez-Rivera

Angel

12 Rojo-Hernandez

Francisco Javier

13 Hernandez-Hernandez

Octavio

14 Morales-Arcadio

Clemente

15 Hernandez-Rojo

Carlos Francisco

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1,346.56
2,139.23

2012 $
2012 $

2,139.23

2012 $
2012 $

1,425.23
1,845,27

16 Hernandez-Hernandez

Antonio

2012 $
2012 $

17 Romero-Cortez

Juan Pablo

2012

18 8rjgido-Hernandez

Genaro

2012

19 Bautista-Martinez

Jonatan

2012

1,851.27
1,425.23
1,902.64

$
$
$
$
$
$

1,412.44

3,247.36

20 Ramos-Vasquez

Oscar

2012

21 Perez-Gomez

Eliceo

2012

22 Enrique-Benita

Celestino

2012

23 Perez-Perez

Douglas

24 Perez-Lucas

Pedro

2011 $
2011 $

25 Munoz Martinez •

Tomas

26 Landaverde Hernandez

Moises

27 Lugo Giullen

Luis

28 Martinez-Lopez

Niguer Yovani

2010 $
2010 $
2010 $
2011 $

1,538.00
1,080.11
1,520.77
1,504.64
1,574.95
3,061.40
753.40
1102.74
1,329.61
1,685,94

Case 6:13-cv-00053BAE-GRS Document 97-1 Filed 09110114 Page 9 of 9

29 Ramirez

30 Hernandez Romero

Raul

Juan Pedro

2010
2013 $

2,00000

2010
2013 $

200000

S

63872.26 1

TOTAL

Case 6:13-cv-00053-BAE-GRS Document 97-1 Filed 09/10114 Page 7 of 9

1982), IT IS THEREFORE ORDERED that all foregoing terms and conditions be, and
the same are, hereby approved and incorporated fully into this Order.

/54

SO ORDERED this

day of

014.

4X
JDGE,
ATE S
1
COURT
SOUTHERN DISTRICT OF

GIA

Respectfully submitted and consented to this 9 t11 day of September, 2014.

Dawson Morton
Georgia Bar No. 525985
Georgia Legal Services Program
104 Marietta Street NW, Suite 250
Atlanta, GA 30303
Phone: [phone]
Fax:
[phone]

Laura H. Wheaton
Brown Rountree P.C.
26 North Main Street
Statesboro, GA 30458
Phone: [phone]
Counsel for Defendants Hendrix
Produce, Inc. and Raymon Earl Hendrix

Attorney for Plaintiffs
rn
rez
Wimber y,
n, Steckel, Schneider
& Stine, P.C.
Suite 400, Lenox Towers
3400 Peachtree Road, N.E.
Atlanta, GA 30326
Phone: [phone]
Counsel for Defendant Yesenia Merino