Alfaro-Huitron et al v. WKI Outsourcing Solutions, LLC et al
Filing
246
MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting 233 Cervantes Agribusiness' and Cervantes Enterprises Inc.'s Joint Motion for Summary Judgment. (baw)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ESTEBAN ALFARO-HUITRON,
ELEAZAR GARCIA-MATA,
JOSE ANTONIO GARCIA-MATA,
JUAN GUZMAN, JOSE GERARDO JASSO,
RAUL JASSO-CERDA, ISMAEL MARTINEZ
GONZALEZ, ENRIQUE ROJAS-TORRES,
LAZARO ROJAS-TORRES,
TRINIDAD SANTOYO-GARCIA
PEDRO TAMEZ, ANGELA TREJO,
EFRAIN TREJO, SANTOS TREJO,
and YANETH TREJO,
No. 2:15-cv-00210-JCH-JHR
Plaintiffs,
v.
WKI OUTSOURCING SOLUTIONS, LLC,
JAIME CAMPOS, CERVANTES AGRIBUSINESS,
CERVANTES ENTERPRISES, INC.,
RJF FARMS, INC., RONNIE J. FRANZOY,
TIERRA DE DIOS FARMS, LLC, RIO VALLEY CHILI
INC., LACK FARMS, INC. and SKYLINE PRODUCE, LLC
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING THE CERVANTES
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendants Cervantes Agribusiness’ and Cervantes
Enterprises, Inc.’s (“Cervantes Defendants”) joint Motion for Summary Judgment [ECF No.
233]. Plaintiffs1 are United States citizens or lawful permanent residents who were given hiring
priority through the federal H-2A program to provide manual labor on fields and land owned by
1
Only nine Plaintiffs are involved in the instant matter: Esteban Alfaro-Huitron, Eleazar GarciaMata, Jose Antonio Garcia-Mata, Juan Guzman, Enrique Rojas-Torres, Lazaro Rojas-Torres,
Raul Jasso-Cerda, Trinidad Santoyo-Garcia, and Pedro Tamez.
Case 2:15-cv-00210-JCH-JHR Document 246 Filed 09/28/18 Page 2 of 19
the Cervantes Defendants during the 2011-2012 harvest seasons. The farm labor contractor who
recruited and hired Plaintiffs – Defendants WKI Outsourcing Solutions, LLC (“WKI”) and its
owner Jaime Campos – never actually furnished Plaintiffs to work for the Cervantes Defendants.
Citing a drought, Campos cancelled Plaintiffs’ work contracts at the last minute. Plaintiffs allege
there was no such unusual drought; the real reason Campos cancelled their contracts was because
he realized there were too many qualified U.S. workers, so he would not be able to access
foreign laborers from Mexico, which was Defendants’ alleged goal all along.
Based on the theory that the Cervantes Defendants and WKI “jointly employed”
Plaintiffs, they sued the Cervantes Defendants under the Migrant and Seasonal Agricultural
Worker Protection Act, 29 U.S.C. §§ 1801-1854 (“AWPA”) contending, among other things,
that they were equally liable for WKI’s cancellation of their work contracts. After carefully
considering the motion, briefs, and relevant law, the Court concludes that the Cervantes
Defendants’ motion should be granted because they did not jointly employ Plaintiffs.
I.
FACTUAL BACKGROUND
Most of the facts necessary to resolve the pending motion for summary judgment are set
forth in the Court’s Memorandum Opinion and Order previously granting summary judgment to
the Cervantes Defendants, which are either undisputed or construed in the light most favorable to
Plaintiffs as the non-movants. See Mem. Op. and Order 1-11, ECF No. 232 (“Order”). The Court
need not repeat those facts herein but adopts them by reference for the purposes of resolving the
motion for summary judgment and presents the following additional material facts.
A.
The H-2A Program
Under the H-2A program, WKI had to give hiring priority to domestic, or “U.S. workers”
like Plaintiffs before petitioning for foreign workers. An employer like WKI could hire foreign
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guest laborers under the H-2A visa program only if it could certify that “there are not sufficient
workers who are able, willing, and qualified” to perform the work and employing foreign
workers “will not adversely affect the wages and working conditions of workers in the United
States similarly employed” 8 U.S.C § 1188(a)(1). An agricultural employer or its agent works
with the State Workforce Agency to recruit U.S. workers on an intrastate and interstate basis. See
20 C.F.R § 655.154(a). If an employer has satisfied the recruitment assurances and other
promises identified in 20 C.F.R. § 655.161, then the Secretary of Labor can grant a request to
hire temporary foreign agricultural labor. See 8 U.S.C. § 1188. The H-2A regulations require an
employer to provide baseline benefits to both domestic and foreign H-2A workers. See 20 C.F.R.
§ 655.122(a). “By requiring that the employer provide these baseline benefits, the regulations
ensure that foreign workers will not be appear more attractive to the employer than domestic
workers, thus avoiding any adverse effects for domestic workers.” Garcia-Celestino v. Ruiz
Harvesting, Inc., 843 F.3d 1276, 1285 (11th Cir. 2016) (“Garcia-Celestino I”).
“Under the program, employers must submit to the Department of Labor an application
commonly referred to as a ‘clearance order’ detailing the terms and conditions of their
prospective workers’ employment.” Garcia-Celestino v. Ruiz Harvesting, Inc., 898 F.3d 1110,
1116 (11th Cir. 2018) (“Garcia-Celestino II”). “By federal regulation, the clearance order
becomes the employees’ work contract by default if the employer does not draw up a separate
contract for them.” Id. (citing 20 C.F.R. § 655.122(q)).
In this case, WKI used its clearance order to recruit and hire Plaintiffs, and because no
separate contract was drawn up, the clearance order served as the work contract between WKI
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and Plaintiffs.2 Under the terms of the clearance order WKI advertised the jobs with an hourly
wage of $9.71 per hour of labor and that rate would have to be paid to all workers who filled the
positions, whether or not the employers ultimately hired domestic or foreign H-2A workers. See
20 C.F.R. § 655.122(a).
In this lawsuit, Plaintiffs’ basic contention is that Campos and the Defendants, including
the Cervantes Defendants, always intended to exploit the H-2A program to access guest laborers
from Mexico because they believed they would work harder for less money. When it became
apparent that Campos would not be able to provide Mexican workers, he cancelled Plaintiffs’
work contracts under the pretense of a drought.
II.
PROCEDURAL HISTORY
In addition to the Cervantes Defendants, WKI and Campos entered into farm labor
contracts under the H-2A program with five other farms based in southern New Mexico –
Defendants RJF Farms, Inc. and its owner Ronnie J. Franzoy, Tierra de Dios Farms, LLC, Lack
Farms, Inc., Rio Valley Chili, Inc., and Skyline Produce, LLC. Plaintiffs voluntarily dismissed
claims against RJF Farms, Inc., Ronnie J. Franzoy, Rio Valley Chili, Inc., Lack Farms, Inc., and
Skyline Produce, LLC. See ECF. Nos. 71, 146, 158.
As for the Cervantes Defendants, Plaintiffs alleged four causes of action against them for
various statutory violation of the AWPA, fraud, breach of contract, and civil conspiracy. See
Pls.’ First Am. Comp., ECF. No. 103. In May and July 2016, the Cervantes Defendants moved
2
The Cervantes Defendants contend that the record evidence shows that the clearance order was
given only to four of the nine Plaintiffs. See Defs.’ Mot. for Summ. J. ¶ K at 5, ECF No. 240.
However, they fail to identify which Plaintiffs allegedly did not receive the clearance order, and
also fail to cite the record. In any case, as explained below, because the Cervantes Defendants
did not jointly employ Plaintiffs they are not liable for breaching the terms of the clearance
order.
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for, and the Court granted, summary judgment to the Cervantes Defendants, concluding that no
reasonable jury could find them liable to Plaintiffs on those theories of liability.3
As for Defendants WKI and Tierra, they never obtained legal counsel as required for
entity parties. See D.N.M.LR-Civ. 83.7. WKI attempted to answer pro se in conjunction with
Defendant Jaime Campos, WKI’s owner. See ECF. No. 55. The Court interpreted that answer as
that of Campos’, not WKI’s. See ECF No. 69. On September 3, 2015 the Honorable William P.
Lynch, United States Magistrate Judge, entered a Notice of Proposed Entry of Default Judgment,
warning Tierra and WKI that unless they “retain counsel and submit answers filed by an attorney
by September 25, 2015, [he would] recommend to the District Judge that default judgment be
entered against them and in favor of the Plaintiffs.” ECF No. 128. Tierra and WKI never heeded
that warning, so on October 7, 2015 the Clerk of Court filed the Clerk’s Entry of Default
Judgment against Tierra and WKI for having failed to plead or otherwise defend. See ECF Nos.
135, 136. Plaintiffs never moved for a damages hearing, and no subsequent litigation concerning
the Clerk’s Entry of Default has occurred since that October 7, 2015 entry. To date, WKI and
Tierra have not obtained legal counsel.
Defendant Jaime Campos, pro se, also appears to have stopped participating in the
litigation. His last docket filing was on October 10, 2015. See ECF No. 137. He failed to appear
at a status conference before Judge Lynch on March 2, 2016, although he did participate in a
mid-March 2016 deposition. See ECF Nos. 161, 168.
III.
STANDARD OF REVIEW
3
At that time the Court did not grant the Cervantes Defendants summary judgment on the instant
matter because the Cervantes Defendants did not clearly identify that claim as one for which they
sought summary judgment. They broadly moved for summary judgment “as to all claims.” But
they did not cite § 1822 or advance any legal arguments against that provision. The Court, sua
sponte, granted the Cervantes Defendants leave to file a motion for summary judgment, which
they did two weeks later.
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Summary judgment is warranted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is
considered material if it “might affect the outcome of the suit under the governing law.”
Anderson, 477 U.S. at 248–50. An issue is “genuine” if the evidence is such that it might lead a
reasonable jury to return a verdict for the nonmoving party. See Tabor v. Hilti, Inc., 703 F.3d
1206, 1215 (10th Cir. 2013). In analyzing a motion for summary judgment, a court must view the
evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant.
See Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015). When “the moving party does not bear
the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment
stage by identifying a lack of evidence for the nonmovant on an essential element of the
nonmovant’s claim.” Cassara v. DAC Serv., Inc., 276 F.3d 1210, 1212 (10th Cir. 2002). The
burden then shifts to the opposing party to come forward with admissible evidence to create a
genuine issue of material fact on that element. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939
F.2d 887, 891 (10th Cir. 1991).
IV.
DISCUSSION
The Court next analyzes whether the Cervantes Defendants and WKI jointly employed
Plaintiffs such they are equally liable for WKI’s cancellation of their work contracts.
A. The AWPA and Joint Employment Principles
In Paragraph 142(b) of Plaintiffs’ First Amended Complaint, Plaintiffs sue the Cervantes
Defendants under 29 U.S.C. § 1822(c) on the theory that they are liable for WKI’s and Campos’
last minute cancellation of their work contracts. Section 1822(c) provides that “[n]o farm labor
contractor, agricultural employer, … shall, without justification, violate the terms of any working
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arrangement made by that contractor, employer, or association with any migrant agricultural
worker.” Plaintiffs contend that the “working arrangement” at issue was the clearance order that
was used to recruit and hire them.
The Cervantes Defendants are liable only if they jointly employed Plaintiffs with WKI. In
order “to assure necessary protections for migrant and seasonal agricultural workers,” 29 U.S.C.
§ 1801, the AWPA imposes obligations on “agricultural employers.”4 Under the AWPA, the
term agricultural employer means “any person who owns or operates a farm, ranch, processing
establishment, cannery, gin, packing shed or nursery, or who produces or conditions seed, and
who either recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal
agricultural worker.” Id. § 1802(2). If an employer fails to adhere to any of the provisions in the
AWPA the statute creates a private right of action in federal court on behalf of all aggrieved
persons. Id. § 1854(a). The Act empowers district courts to impose actual damages or statutory
damages of $500 per plaintiff per violation. Id. § 1854(c).
For purposes of the AWPA, the term “employ” has the same definition as that used in the
Fair Labor Standards Act. Id. § 1802(5). “‘Employ’ includes to suffer or permit to work.” 29
U.S.C. § 203(g). “Under the AWPA, [agricultural employers] who engage the services of farm
labor contractors to furnish farmworkers are found to have ‘employed’ the members of the labor
contractors’ crews … when the independent farm labor contractor is ‘not completely
disassociated with respect to the employment’ of workers, such that the labor contractor and the
grower are deemed to jointly employ the workers.” Fanette v. Steven Davis Farms, LLC, 28 F.
Supp. 3d 1243, 1254 (N.D. Fla. 2014) (citing 29 C.F.R. § 500.20(h)(4)-(5); 29 C.F.R. §
791.2(a)).
4
The Court explained in its previous Order that both of the Cervantes Defendants qualify as
agricultural employers under the AWPA. See Mem. Op. and Order at n.3 & 23.
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Relevant regulations define “joint employment” as “a condition in which a single
individual stands in the relation of an employee to two or more persons at the same time.” 29
C.F.R. § 500.20(h)(5). Because the use of farm labor contractors is common in agricultural
employment, see Gonzalez-Sanchez v. Int’l Paper Co., 346 F.3d 1017, 1020 (11th Cir. 2003), the
joint employment doctrine ensures that agricultural employers cannot “shield[] themselves from
liability for mistreating employees [b]y hiring (and thereby shifting liability to) intermediary”
labor contractors. See Castillo v. Case Farms of Ohio, Inc., 96 F. Supp. 2d 578, 589 (W.D. Tex.
1999). Thus under the AWPA, “agricultural entities [are] directly responsible for farmworkers
who, as a matter of economic reality, depend[] upon them, even if the workers were hired or
employed by a middleman or independent contractor.” Antenor v. D & S Farms, 88 F.3d 925,
930 (11th Cir. 1996). “Congress’ plain intent was to protect migrant and seasonal workers from
abuse and exploitation, and to hold ‘agricultural employers’ fully accountable as joint employers
whenever the facts suggest that liability is fairly imposed.” Id.
“Whether an entity qualifies as a joint employer is a question of law” for the court to
decide. Garcia-Celestino I, 843 F.3d at n.12 & 1293. “[T]he ultimate question to be determined”
by the court “is the economic reality – whether the worker is so economically dependent upon
the agricultural employer/association as to be considered its employee.” 29 C.F.R. §
500.20(h)(5)(iii). The court asks “whether the worker’s employment with the two entities should
be treated as “one employment” for purposes of determining compliance with” and liability
under the AWPA. Salinas v. Commercial Interiors, Inc., 848 F.3d 125, 137 (4th Cir. 2017). The
“relevant relationship” the court examines is “the relationship between the putative joint
employers.” Id. (explaining that courts should not “improperly focus on the relationship between
the employee and the putative joint employer, [but] rather … on the relationship between the
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putative joint employers.”) If the court determines that “as a matter of economic reality, a laborer
is dependent upon the [farm labor contractor] and the agricultural employer, then a joint
employment relationship exists, and the laborer will be considered an employee of both entities.”
Martinez-Mendoza v. Champion Int’l Corp., 340 F.3d 1200, 1208 (11th Cir. 2003). But if the
court’s analysis shows that two entities “are completely disassociated with respect to the
employment of a particular employee, a joint employment situation does not exist.” 29 C.F.R. §
500.20(h)(5). In determining the joint employment test, courts look to the following regulatory
factors.
(A) Whether the agricultural employer/association has the power, either alone or
through control of the farm labor contractor to direct, control, or supervise the
worker(s) or the work performed (such control may be either direct or indirect,
taking into account the nature of the work performed and a reasonable degree of
contract performance oversight and coordination with third parties);
(B) Whether the agricultural employer/association 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 for the worker(s);
(C) The degree of permanency and duration of the relationship of the parties, in
the context of the agricultural activity at issue;
(D) The extent to which the services rendered by the worker(s) are repetitive, rote
tasks requiring skills which are acquired with relatively little training;
(E) Whether the activities performed by the worker(s) are an integral part of the
overall business operation of the agricultural employer/association;
(F) Whether the work is performed on the agricultural employer/association's
premises, rather than on premises owned or controlled by another business entity;
and
(G) Whether the agricultural employer/association undertakes responsibilities in
relation to the worker(s) which are commonly performed by employers, such as
preparing and/or making payroll records, preparing and/or issuing pay checks,
paying FICA taxes, providing workers’ compensation insurance, providing field
sanitation facilities, housing or transportation, or providing tools and equipment
or materials required for the job (taking into account the amount of the
investment).
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29 C.F. R. § 500.20(h)(5)(iv)(A)-(G). The laborer carries to the burden of proof to
establish the joint employment inference by a preponderance of the evidence. See MartinezMendoza, 340 F.3d at 1209.
B. Analysis of Factors
The Court next applies the seven regulatory factors above to determine whether the
Cervantes Defendants and Campos jointly employed Plaintiffs.
i. Power to Direct, Control, or Supervise, Both Directly and Indirectly
This factor focuses on whether the putative employer takes an “overly active role” in
overseeing the work performed by the workers. Martinez-Mendoza, 340 F.3d at 1209-10.
“[C]ontrol arises when the alleged employer goes beyond general instructions, such as how many
acres to pick in a given day, and begins to assign specific tasks” or workers. Id. at 1210. An
alleged employer engages in active oversight when it makes such decisions as: (1) whom and
how many employees to hire; (2) whom to assign to specific tasks; (3) when work should begin
or end each day; (4) when a particular field will be harvested or planted; and (5) whether a
worker should be disciplined. Id. at 1210; see also Charles v. Burton, 169 F.3d 1322, 1329-30
(11th Cir. 1999).
In this case, Plaintiffs never actually worked on the Cervantes Defendants’ lands. They
therefore rely heavily on the Cervantes Defendants’ past employment of a different farm labor
contractor, Jesus Maldonado, as a proxy, contending that the Cervantes Defendants exercised
substantial control of Maldonado and his work crew, and perforce would have done the same to
Campos and Plaintiffs. For instance, Plaintiffs note how Dino Cervantes would instruct
Maldonado to provide a specific number of workers to harvest a specific crop at a specific time.
See Pls.’ Resp. 11-12, ECF No. 234. The Cervantes Defendants deducted FICA taxes for
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Maldonado’s laborers, could alter Maldonado’s compensation, and Dino Cervantes monitored
Maldonado’s laborers’ wages. Id. Plaintiffs also argue that Maldonado’s laborers effectively
depended on the contract between the Cervantes Defendants and Maldonado, since they drew
their wages from that contract. Id.
This evidence concerning Maldonado would powerfully suggest that the Cervantes
Defendants exercise control and supervision of farm labor contractors and their crews. But is the
Cervantes Defendants’ relationship with Maldonado, a non-party to this case, relevant evidence
of the relationship between the Cervantes Defendants and WKI? Plaintiffs say so, relying on a
single district court opinion, Rodriguez et al. v. SGLC, Inc., 2012 WL 5704403 at *7-8, 2:08-cv01971-MCE-KJN (E.D. Cali. Nov. 15, 2012). There, as here, a farm labor contractor, SGLC,
hired plaintiffs under the H-2A program to work on grower’s lands. Id. at *1. And there, as here,
SGLC did not furnish plaintiffs to work on the grower’s lands. Unlike here though, the grower
had employed SGLC and its crew in the past. Id. at *7. Their business history was relevant
evidence. So the plaintiffs relied on that history, noting how the grower would perform quality
control over SGLC’s crew’s work, supervise the crew’s members, monitor their timesheets, and
dictate whether to pay them an hourly or piece rate. Id. at *8. Here, WKI and the Cervantes
Defendants had no prior history from which Plaintiffs can extrapolate. Using Maldonado as a
stand-in is not relevant evidence of the relationship between WKI and the Cervantes Defendants.
The conclusion in Rodriguez is not precedential or persuasive.
As between WKI and the Cervantes Defendants, the record construed in Plaintiffs’ favor
does show the following indicia of control and supervision that the Cervantes Defendants would
have exercised: 1) they would have trained Plaintiffs on how to harvest crops; 2) they hired a
specific number of laborers to harvest specific fields for a specific duration; and 3) they could
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have asked WKI to “replace” a laborer. See e.g. Charles, 169 F.3d at 1330 (control found where
agricultural determined when, where, and for how long farm labor contractor’s crew would pick
snap beans).
The main problem, though, is that Plaintiffs never actually worked on the Cervantes
Defendants’ lands. The Court therefore cannot meaningfully evaluate the degree of supervision
and control they would have exercised over Plaintiffs. This is important because whereas an
overly active putative employer tilts towards a finding of joint employment, “de minimis
supervision,” does not. See Antenor, 88 F.3d at 935 (internal quotations omitted). The Court
cannot asses on which side of the dividing line the Cervantes Defendants stand.
That aside, the next problem Plaintiffs have is that the indicia of control and supervision
Plaintiffs cited could well be “agricultural decisions” – that is, “necessary parts of agricultural
administration such as choosing which fields to pick on which days or dictating what planting
specifications should be used.” Garcia-Celestino II, 898 F.3d at 1126. Even though such
decisions “might indirectly affect how many workers need to be hired,” they still do not show
‘control[.]’” Id. The record as a whole shows that the Cervantes Defendants exercised very little
control. WKI alone chose who and how to hire. The Cervantes Defendants were not involved in
WKI’s internal organization. There is no evidence that the Cervantes Defendants would have
decided when Plaintiffs began their work day, took breaks, or finished their work. Plaintiffs have
presented no evidence that the Cervantes Defendants would have assigned work to specific
workers, inspected the work performed, or would have closely monitored Plaintiffs. Cf. TorresLopez v. May, 111 F.3d 633, 642-43 (9th Cir. 1997) (grower exercised “significant control”
when it controlled harvest schedule, number of workers, decided days for harvesting, inspected
work performed, had a daily presence in the field, and monitored the farmworkers closely.)
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Plaintiffs argue that the Cervantes Defendants exercised supervision and control over
them because Campos testified that he would “have to replace” a worker that the agricultural
employer did not want. Dep. of Jaime Campos 71:19, ECF No. 234-2. But Campos’ testimony
tells a different story. A few lines later he stated that “if someone is not behaving or doing the
right job or something, it was for [WKI] first to try to encourage the person to – to comply, to do
it,” id. at 71:24-25 – 72:1-2, suggesting that the Cervantes Defendants would not have directly
been involved in the discipline or retention of Plaintiffs. All in all, this factor does not weigh in
Plaintiffs’ favor.
ii. Direct or Indirect Power to Hire or Fire, Modify Employment Conditions, or
Determine Rates or Methods of Pay
In analyzing this factor, courts look at whether the putative employer can make business
decisions that impact the worker’s conditions of employment, such as determining hiring or
firing decisions, the number of hours to be worked each day, and whether the putative employer
dictates pay rates and methods. See Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172, 1179 (11th
Cir. 2012). In Antenor the putative employers jointly employed the plaintiffs where they
exercised “veto” power of the farm labor contractor’s hiring decisions, “monitored the workers’
job qualifications rather than relying on” the farm labor contractor to do so, and “dictated the
workers’ hours” by deciding when work should begin, by forcing the workers to stop working,
and by bringing in their own work crews at their discretion. 88 F.3d at 935.
The Cervantes Defendants and WKI signed an “Agreement of Outsourcing Support”
governing the number of workers and services that the Plaintiffs were to provide to the Cervantes
Defendants. See Agreement of Outsourcing, ECF No. 234-2, 123 (“AOS”). However, WKI, not
the Cervantes Defendants, was responsible for presenting to the Plaintiffs the fully prepared
work contract, with job descriptions, pay rates, and methods of payment already specified.
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Plaintiffs contend that the Cervantes Defendants effectively dictated Plaintiffs’ wages by
deciding to pay them on an hourly, rather than piece rate, basis. However, as Plaintiffs repeatedly
acknowledge, the H-2A regulations require the employing entity to pay workers an hourly wage
of either the AEWR or the federal minimum hourly wage. And besides, Plaintiffs presented no
evidence that the Cervantes Defendants were the ones who chose between a piece-rate or an
hourly method of payment. It appears WKI made that decision. So this argument is unavailing.
Plaintiffs also argue that the Cervantes Defendants were able to impact the workers’
conditions of employment as evidenced by Dino Cervantes’ statement that “if somebody didn’t
harvest chile to quality standards, I’ll tell the contractor that he didn’t do a good job.” Pls.’ Resp.
at 13. Plaintiffs argue this meant that the Cervantes Defendants could “vet the quality of work
performed.” Id. But even reading the record in Plaintiffs’ favor, this is again the sort of
“agricultural decision which does not constitute the type of ‘control’ that the … [AWPA]
address[es].” Martinez-Mendoza, 340 F.3d at 1211 (holding that “the drafting of plant
specifications is unquestionably an agricultural decision.”) An agricultural employer does not
jointly employ a farm labor contractor’s crew simply because it ensures the crew complies with
contract specifications. See id. Accordingly, this factor does not weigh in Plaintiffs’ favor.
iii. Permanency and Duration
Plaintiffs argue that they were hired for a fixed period, November 2011 to March 2012,
and that their work relationship would have been permanent to the extent that their work is
inherently seasonal. Indeed, “[h]arvesting of crops is a seasonal industry … [h]owever temporary
the relationship may be … the relationship is permanent … [if] the migrants work only for [the]
defendants during that season.” Charles, 169 F.3d at 1332. “Where [a farm labor contractor] and
its workers are engaged for the duration of the operation and are obligated work exclusively for
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the employer at its discretion, this factor would suggest economic dependence.” MartinezMendoza, 340 F.3d at 1212. Although Plaintiffs were hired to work for a specific harvest period,
Plaintiffs presented no record evidence that WKI would have furnished Plaintiffs to work
primarily or exclusively with the Cervantes Defendants as opposed to several other farmers WKI
also had labor contracts with. Neither the clearance order nor the contract between the Cervantes
Defendants and WKI specify such terms. Thus, the evidence suggests that there was little, if any,
permanency and duration of the relationship between Plaintiffs and the Cervantes Defendants.
So this factor is not in Plaintiffs’ favor.
iv. Whether the services rendered were repetitive and rote
“The lower the worker’s skill level, the lower the value and marketability of his services,
and the greater the likelihood of his economic dependence on the person utilizing those
services.” Martinez-Mendoza, 340 F.3d at 1212. Whether Plaintiffs would harvest crops or
process and pack dry chile for the Cervantes Defendants, either activity is likely a repetitive and
rote task. See Charles, 340 F.3d at 1332 (picking snap beans was a “repetitive and rote task
requiring relatively little training.”) This factor weighs in favor of finding of joint employment.
v. Integral part of the overall business operation
“This factor is 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.” Charles, 169 F.3d at 1332 (internal quotations and
citations omitted). Plaintiffs claim that they would have harvested red chile for the Cervantes
Defendants and that harvesting chile is an integral part of the Cervantes Defendants’ operations.
As support Plaintiffs cite an interrogatory showing that Cervantes Agribusiness produces cotton,
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corn, chile, and pecans, and they cite Dino Cervantes’ statement that the Cervantes family has
been in agriculture for multiple generations. See Pls’ Resp. at 15.
The Cervantes Defendants challenge Plaintiffs’ assertion that harvesting chile is an
integral part of their operations, saying that chile is one of numerous crops they produce.
Cervantes Enterprises also contends that it is not involved in chile harvesting at all. But reading
the record in Plaintiffs’ favor, as the Court must, the evidence shows that harvesting chile is an
integral part of the Cervantes Defendants’ operations. Dino Cervantes, Cervantes Agribusiness’
general manager, explained that he is “involved in the chile industry,” that his various family
members “are involved at different capacities and different aspects of the chile industry,” that
agriculture is a family vocation “and chile is part of that.” Dep. of Dino Cervantes, cited by
Plaintiffs as “SJR 27:13-23”, ECF No. 234-2 at 27.
This evidence suggests that Cervantes Enterprises is in the “chile industry” even if it not
the entity overseeing harvesting operations. Cervantes Agribusiness appears to have played that
role. Testimony from Dino Cervantes and his farm labor contractor Jesus Maldonado suggests
that Cervantes Agribusiness relied greatly on the work of manual field laborers. See id. cited by
Plaintiffs as SJR 28:9:15; Dep. of Jesus Maldonado, cited by Plaintiffs as SJR 34:1-25 – 35:1-25,
ECF No. 234-2 at 34-45. Cf. Martinez-Mendoza, 340 F.3d at 1213 (hand-planting of seedlings
was not “indispensable” work because forests naturally regenerate and because most of
defendant’s seedlings were machine-planted). Plaintiffs’ evidence sufficiently demonstrates that
chile harvesting was an integral part of the Cervantes Defendants’ overall operations.
The Cervantes Defendants also dispute that Plaintiffs would have worked for them
specifically as opposed to other farmers. True, the contract between WKI and the Cervantes
Defendants called for a generic “15 farm workers.” See AOS. It did not specifically identify
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Plaintiffs. But the fact remains that those 15 workers would have harvested crops on the
Cervantes Defendants’ premises, and that the performance of this task would have been integral
to the Cervantes Defendants’ overall operations. So this factor weighs in Plaintiffs’ favor.
vi. Work performed on the agricultural employer’s premises
The Cervantes Defendants concede that Plaintiffs would have worked on their lands.
However, when the court in analyzed this factor in Martinez-Mendoza it suggested that workers
who are unaware of the putative employer’s identity are not jointly employed by that employer.
340 F.3d at 1214. The plaintiffs’ farm labor contractor hired and transferred them to work in
forests owned by different landowners, so the plaintiffs never knew on whose land they worked.
Id. They did not “rel[y] upon or anticipate[]” the putative employer’s business a source of
income. Id. However, because the plaintiffs did actually work on the defendant’s forest land, the
court found this factor in plaintiffs’ favor, but only “slightly.” Id. Here, Plaintiffs likewise never
knew they would work for the Cervantes Defendants or on their lands. And as mentioned earlier,
Plaintiffs presented no record evidence that WKI would have furnished Plaintiffs to work
primarily or exclusively with the Cervantes Defendants as opposed to several other farmers WKI
also had labor contracts with. This factor may weigh in Plaintiffs’ favor, but as in MartinezMendoza, only slightly.
vii. Responsibilities ordinary performed by employers
“The final factor examines whether [the putative employer] undertook responsibilities for
workers often undertaken by employers, such as (1) preparing and/or making payroll records, (2)
preparing and/or issuing pay checks, (3) paying FICA taxes, (4) providing workers’
compensation insurance, (5) providing field sanitation facilities, housing or transportation, or (6)
providing tools and equipment or materials required for the job.” Martinez-Mendoza, 340 F.3d at
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1214. “The provision of such services “is both an objective manifestation of employer status and
strong evidence of the workers’ economic dependence upon [it].” Id. Thus in Martinez-Mendoza,
the court found that this factor did not suggest joint employment when the putative employer
“provided none of these services[.]” Id. “The [farm labor contractor] alone prepared the laborer’s
payroll records and checks, paid their FICA taxes, provided their housing, transportation, tools,
etc.” Id.
Plaintiffs submitted no evidence that the Cervantes Defendants undertook responsibilities
commonly performed by employers. There is no evidence that the Cervantes Defendants would
have managed Plaintiffs’ payroll, provide workers’ compensation insurance, provide field
sanitation facilities, or provide house or transportation. The clearance order identified WKI alone
as the employer. According to the clearance order, WKI was to provide workers three meals a
day at specified cost, housing, transportation, and minimum work hours. WKI was responsible
for deducting FICA and state taxes. The clearance order offered unemployment insurance,
workers’ compensation insurance, and tools at no charge. There is simply no indication in the
record that the Cervantes Defendants were responsible for any of these services. This factor does
not weigh in Plaintiffs’ favor.
C. Weighing of Factors
Of the seven regulatory factors, only three weigh in Plaintiffs’ favor (and one of them
only slightly.) Again, in analyzing whether the Cervantes Defendants jointly employed Plaintiffs,
“the ultimate question to be determined is the economic reality – whether the worker is so
economically dependent upon the agricultural employer/association as to be considered its
employee.” 29 C.F.R. § 500.20(h)(5)(iii). The answer is no, because there is little to no evidence
that the Cervantes Defendants would have directly impacted Plaintiffs’ employment,
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performance, controlled their qualifications, payment, and the like. Plaintiffs were unaware of
the Cervantes Defendants’ existence. WKI, not the Cervantes Defendants, signed itself up to do
employer-like things such as pay Plaintiffs and deduct their taxes. WKI was to furnish them
meals, housing, and transportation. When weighed together the factors strongly show that the
Cervantes Defendants did not jointly employ Plaintiffs with WKI. They are not liable for WKI’s
breach of any working arrangement under 29 U.S.C. § 1822(c).
IT IS THEREFORE ORDERED that Cervantes Agribusiness’ and Cervantes
Enterprises Inc.’s Joint Motion for Summary Judgment [ECF No. 233] is GRANTED. Those
parties are hereby DISMISSED.
IT IS SO ORDERED.
_______________________________________
UNITED STATES DISCTRICT COURT JUDGE
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