Perez v. Blue Mountain Farms et al

Filing 147

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY JUDGMENT 96 Motion for Partial Summary Judgment. Signed by Chief Judge Rosanna Malouf Peterson. (AY, Case Administrator)

1
2
3
4
UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF WASHINGTON

6
7
8

THOMAS E. PEREZ, Secretary of
Labor, United States Department of
Labor,
Plaintiff,

9
v.

NO: 2:13-CV-5081-RMP
ORDER GRANTING IN PART
MOTION FOR PARTIAL
SUMMARY JUDGMENT

10
11
12
13
14

BLUE MOUNTAIN FARMS LLC,
BLUE MOUNTAIN PACKING LLC,
RYAN BROCK, SHIRLEY LOTT,
GREAT COLUMBIA BERRY FARM
LLC, APPLEGATE ORCHARDS INC.
and BRANDON LOTT,
Defendants.

15
16

BEFORE THE COURT is Plaintiff’s Motion for Summary Judgment

17

Regarding the Secretary’s Paragraph VIII and XIV(a)-(e) Claims for Relief Under

18

the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Workers

19

Protection Act, ECF No. 96. The Court has reviewed the filings, the response

20

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 1

1

memorandum, ECF No. 115, the reply memorandum, ECF No. 128, and is fully

2

informed.

3
4

BACKGROUND
Defendants’ business is the agricultural production of blueberries. ECF No.

5

96-1 at 2. As part of blueberry production, Defendants employ workers to pick

6

blueberries in their fields. Id. at 3. These workers are employed seasonally from

7

June to October of each year. ECF No. 97-1 at 2. Some workers are required to be

8

away from their permanent residence overnight or longer related to their

9

employment. ECF No. 96-1 at 3.

10

Workers are paid a piece rate for each pound of blueberries they pick during

11

a given workday. Id. at 4. The pounds of blueberries harvested by each worker are

12

recorded on a punch ticket that bears the worker’s name. Id. Only one worker is

13

named on any given ticket. Id. Workers bring their blueberries to a weigh station

14

where Defendants’ employees record the amount on the worker’s ticket. Id.

15

Tickets are collected at the end of each workday and used to compute the number

16

of pounds of blueberries picked by the worker named on the ticket. Id. at 5. The

17

number of pounds picked is used to prepare pay checks for each named worker. Id.

18

Some workers who picked Defendants’ blueberries were not recruited

19

through a formal hiring process. Id. at 7. These “shadow” workers

20

(interchangeably referred to by the parties as “ghost” workers) did not possess their

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 2

1

own self-identifying ticket but would instead share, or pick blueberries which were

2

counted on, another worker’s ticket. Id.; see also ECF No. 99 at 5 (“During the

3

2011 blueberry picking season, I shared my ticket with another picker.”); ECF No.

4

100 at 2–3 (“During the 2009 to 2012 picking seasons, I worked on my mother’s

5

ticket. My brother also worked on my mother’s ticket at the same time, as did my

6

father.”); ECF No. 102 at 5 (“During the 2013 blueberry picking season, once per

7

week I shared my punch ticket with another picker.”); ECF No. 103 at 5 (“From

8

the 2008 season on, the blueberries I picked were recorded on the punch ticket

9

under my name. However, my two sons also worked under my punch ticket.”);

10

ECF No. 104 at 5 (“During the time I worked for Blue Mountain Farms LLC, I

11

shared my punch ticket with my son and daughter.”). When both a named and

12

“shadow” worker share the named worker’s ticket, the ticket reflects the labor

13

(measured in pounds of blueberries picked) of both individuals. See, e.g., ECF No.

14

100 at 3.

15

Defendants maintain that they have a policy prohibiting ticket sharing, see

16

ECF No. 119 at 4 (“The rule at Blue Mountain Farms is that every worker must

17

have his or her own pick ticket.”), that is enforced when multiple workers are

18

caught picking blueberries on a single ticket. See ECF No. 97-1 at 4 (“If I count

19

110 workers and get 100 tickets at the end of the day, we just remind the foreman

20

that everyone has to be on their own ticket.”); ECF No. 117 at 2 (“Supervisors at

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 3

1

Blue Mountain Farms routinely remind employees of the rule . . . as well as the

2

fact that employees can be terminated if they do share tickets.”). However,

3

Defendants admit that, despite their best efforts, multiple workers do occasionally

4

pick on the same ticket. See ECF No. 97-1 at 4 (“Sometimes people do pick on the

5

same ticket”); ECF No. 115 at 9 (“Despite defendants’ rule against sharing tickets,

6

defendants acknowledge that it may occasionally happen.”). Defendants also

7

dispute that ticket sharing, where it exists, is as prevalent as alleged by the

8

Secretary. ECF No. 117 at 2 (“While we occasionally discover that two workers

9

are sharing a pick ticket, this is not a prevalent or persistent problem at Blue

10
11

Mountain Farms.”).
Ticket sharing, however extensive, necessarily results in inaccurate

12

recordkeeping. There would be no record at all concerning the unnamed “shadow”

13

worker and the records of the worker named on the ticket would be inflated by the

14

“shadow” worker’s labor. ECF No. 115 at 9 (“Defendants further acknowledge

15

that if it were to happen, defendants would not have records for those

16

ghostworkers, and that those ghostworkers may not have seen the disclosures

17

provided to employees at the time of hire and time of payment.”); see also ECF

18

No. 99 at 5 (“When I shared my ticket, Blue Mountain Farms LLC did not collect

19

information . . . about the other worker on my ticket.”); ECF No. 100 at 3 (“When I

20

shared punch tickets, all of the berries I picked were weighed along with the

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 4

1

berries of the other workers on my mother’s ticket.”); ECF No. 102 at 5 (“When I

2

shared my tickets, all of the blueberries I picked were weighed together with the

3

blueberries of the other worker on my ticket”); ECF No. 103 at 5–6 (“[T]he

4

blueberries that my sons picked were mixed with the blueberries I picked and they

5

were weighed together with a representative of Blue Mountain Farms LLC. I was

6

paid based on the total amount of blueberries picked, including the blueberries

7

picked by my sons.”); ECF No. 104 at 5–6 (“When I worked on a shared ticket, I

8

would divide the money paid by the company with the workers who shared the

9

ticket. I divided the pay depending on the number of blueberry boxes picked. The

10

money distribution was not exact. Blue Mountain Farms LLC did not issue us

11

separate checks to each one of the members sharing the ticket.”). Defendants

12

would also be unable to disclose employment information to any “shadow”

13

workers during recruitment. See ECF No. 100-1 at 2 (“In those seasons, Blue

14

Mountain Farms had no contact with me regarding the work I did for them. I

15

didn’t get any information about the terms and conditions of my employment with

16

Blue Mountain Farms.”); ECF No. 101-1 at 2 (same); ECF No. 106-1 at 5 (same).

17

The Secretary filed this lawsuit following an investigation into Defendants’

18

employment practices. The First Amended Complaint alleges violations of the

19

Fair Labor Standards Act (“FLSA”) and the Migrant and Seasonal Agricultural

20

Worker Protection Act (“MSPA”). See ECF No. 54. The Secretary filed this

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 5

1

motion for partial summary judgment on Paragraphs VIII and XIV(a)-(e) of the

2

First Amended Complaint on September 9, 2015. ECF No. 96. Paragraph VIII

3

alleges violations of FLSA recordkeeping requirements. ECF No. 54 at 9–10.

4

Paragraphs XIV(a)-(e) allege violations of various MSPA recordkeeping and

5

disclosure provisions. Id. at 13. Further, the Secretary requests an injunction

6

enjoining Defendants from committing future violations of both the FLSA and

7

MSPA. ECF No. 96 at 3. Finally, in contemplation of the next stage of litigation,

8

the Secretary asks for a finding that the Department is entitled to prove any wages

9

owed as a matter of just and reasonable inference under Anderson v. Mt. Clemens

10

Pottery Co., 328 U.S. 680 (1946). ECF No. 96 at 21.

11

Defendants filed a response on September 30, 2015. ECF No. 115. The

12

Secretary filed a reply on October 14, 2015. ECF No. 128. The Court heard oral

13

argument on October 28, 2015. See ECF No. 141.

14
15

DISCUSSION
I.

Whether Summary Judgment is Appropriate on the Secretary’s
FLSA and MSPA Recordkeeping and Disclosure Allegations

16
A. Summary Judgment Standard
17
Summary judgment is appropriate when the moving party establishes that
18
there are no genuine issues of material fact and that the movant is entitled to
19
judgment as a matter of law. Fed. R. Civ. P. 56(a). A party may move for partial
20
summary judgment by identifying the specific claim or defense on which summary

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 6

1

judgment is sought. Id. If the moving party demonstrates the absence of a genuine

2

issue of material fact, the burden shifts to the non-moving party to set out specific

3

facts showing that a genuine issue of material fact exists. Celotex Corp. v. Catrett,

4

477 U.S. 317, 323–25 (1986). A genuine issue of material fact requires “sufficient

5

evidence supporting the claimed factual dispute . . . to require a jury or judge to

6

resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v.

7

Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). “Where the

8

record taken as a whole could not lead a rational trier of fact to find for the non-

9

moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.

10
11

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted).
The evidence presented by both the moving and non-moving parties must be

12

admissible. Fed. R. Civ. P. 56(e). Evidence that may be relied upon at the

13

summary judgment stage includes “depositions, documents, electronically stored

14

information, affidavits or declarations, stipulations . . . admissions, [and]

15

interrogatory answers.” Fed. R. Civ. P. 56(c)(1)(A). The court will not presume

16

missing facts, and non-specific facts in affidavits are not sufficient to support or

17

undermine a claim. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888–89 (1990).

18

In evaluating a motion for summary judgment, the Court must draw all

19

reasonable inferences in favor of the non-moving party. Dzung Chu v. Oracle

20

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 7

1

Corp. (In re Oracle Corp. Secs. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing

2

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

3
4

B. The FLSA and MSPA Recordkeeping and Disclosure Provisions
The FLSA imposes on qualifying employers various recordkeeping

5

requirements. 29 U.S.C. § 211(c); Mt. Clemens, 328 U.S. at 687 (“Due regard must

6

be given to the fact that it is the employer who has the duty under § [211(c)] of the

7

[FLSA] to keep proper records of wages, hours and other conditions and practices

8

of employment.”). Section 211(c) requires:

9
10
11
12

Every employer subject to any provision of this chapter or of any order
issued under this chapter shall make, keep, and preserve such records
of the persons employed by him and of the wages, hours, and other
conditions and practices of employment maintained by him, and shall
preserve such records for such periods of time, and shall make such
reports therefrom to the Administrator as he shall prescribe by
regulation or order as necessary or appropriate for the enforcement of
the provisions of this chapter.

13
29 U.S.C. § 211(c). Section 215(a)(5) makes it unlawful “to violate any of the
14
provisions of section 211(c).” 29 U.S.C. § 215(a)(5).
15
The MSPA imposes similar recordkeeping requirements on qualifying
16
employers of migrant and/or seasonal agricultural workers. As to migrant
17
agricultural workers, MSPA mandates that
18
19
20

[e]ach farm labor contractor, agricultural employer, and agricultural
association which employs any migrant agricultural worker shall
(1) with respect to each such worker, make, keep, and preserve records
for three years of the following information: (A) the basis on which
wages are paid; (B) the number of piecework units earned, if paid on a

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 8

1
2

piecework basis; (C) the number of hours worked; (D) the total pay
period earnings; (E) the specific sums withheld and the purpose of each
sum withheld; and (F) the net pay.

3

29 U.S.C. § 1821(d)(1); see also 29 U.S.C. § 1831(c)(1) (imposing identical wage-

4

related recordkeeping requirements on employers of seasonal agricultural

5

workers).

6

MSPA further charges that the employer must provide to each migrant

7

agricultural worker “for each pay period, an itemized written statement of the

8

information required by § 1821(d)(1).” 29 U.S.C. § 1821(d)(2); see also 29 U.S.C.

9

§ 1831(c)(2) (imposing identical disclosure of wage-related records requirements

10

on employers of seasonal agricultural workers). MSPA imposes additional wage-

11

related disclosure requirements on employers who furnish migrant agricultural

12

workers to other employers, requiring the employer to provide copies of all records

13

which the employer must produce and retain under § 1821(d)(1). 29 U.S.C.

14

§ 1821(e); see also 29 U.S.C. § 1831(d) (imposing identical requirement on

15

employers of seasonal agricultural workers). Finally, employers of migrant

16

agricultural workers are required to

17
18
19
20

ascertain and disclose in writing to each such worker who is recruited
for employment the following information at the time of the worker’s
recruitment: (1) the place of employment; (2) the wage rates to be paid;
(3) the crops and kinds of activities on which the worker may be
employed; (4) the period of employment; (5) the transportation,
housing, and any other employee benefit to be provided, if any, and any
costs to be charged for each of them; [and other provisions relating to

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 9

1

strikes or concerted work stoppage, sales commissions; and worker’s
compensation insurance].

2
29 U.S.C. § 1821(a); see also 29 U.S.C. § 1831(a) (same disclosure requirements
3
concerning seasonal agricultural workers except, while the employer must still
4
ascertain the information, the information must only be disclosed in writing upon
5
the worker’s request when an offer of employment is made). The information to
6
be disclosed to migrant agricultural workers in § 1821(a) must be provided in
7
written form. 29 U.S.C. § 1821(g); see also 29 U.S.C. § 1831(f) (same requirement
8
for employers of seasonal agricultural workers).
9
10

C. Whether a Genuine Issue of Material Fact Exists Concerning the
Secretary’s FLSA and MSPA Recordkeeping and Disclosure
Allegations

11
Defendants dispute neither that they are employers subject to the FLSA and
12
MSPA nor that both the named and “shadow” workers qualify for protection under
13
the statutes. See generally ECF No. 115. Instead, Defendants argue that there are
14
unresolved issues that preclude summary judgment concerning the prevalence of
15
ticket sharing and whether Defendants had an accepted practice of permitting ticket
16
sharing by their workers. See id. at 2.
17
While Defendants’ arguments raise concerns that are relevant to the issue of
18
wages owed, they do not raise a genuine issue of material fact concerning whether
19
the FLSA and MSPA recordkeeping and disclosure provisions were actually
20
violated. Each statutory provision on which the Secretary moves for summary

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 10

1

judgment contains a mandate to qualifying employers requiring them to undertake

2

the listed command. See, e.g., 29 U.S.C. § 211(c) (“Every employer . . . shall

3

make, keep, and preserve . . . .”) (emphasis added); 29 U.S.C. § 1821(d)(1)

4

(“Each . . . agricultural employer . . . which employs any migrant agricultural

5

worker shall . . . .”) (emphasis added). In fact, every provision at issue employs the

6

verb “shall,” thereby issuing employers a directive to record or disclose

7

information as instructed. See Shall, BLACK’S LAW DICTIONARY (10th ed. 2014)

8

(defining “shall” as “[h]as a duty to; more broadly, is required to”). As such, the

9

FLSA and MSPA recordkeeping and disclosure provisions are mandatory and must

10

be fully complied with by employers.

11

Defendants are correct that genuine issues of material fact remain

12

concerning both any policy regarding and the prevalence of “shadow” workers.

13

However, to defeat summary judgment on Paragraphs VIII and XIV(a)-(e)

14

Defendants must demonstrate that a genuine issue of material fact exists as to their

15

full compliance with the FLSA and MSPA recordkeeping and disclosure

16

provisions. Defendants have failed to do so. Defendants concede that ticket

17

sharing “may occasionally happen.” ECF No. 115 at 9. Defendant Brandon Lott

18

admitted that “[s]ometimes people do pick on the same ticket.” ECF No. 97-1 at 4.

19

Defendant Shirley Lott admitted that workers have been caught and terminated for

20

picking blueberries on the same ticket. ECF No. 116-1 at 2–3. Defendants have

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 11

1

failed to rebut the declarations from various workers who report sharing tickets.

2

ECF No. 115 at 9 n.2.

3

Based on the evidence before the Court, the Court finds that ticket sharing

4

occurs amongst Defendants’ workers. It is immaterial to the instant motion both

5

how often ticket sharing occurs as well as any efforts taken by Defendants to

6

discourage the practice. When workers share tickets, Defendants are unable to

7

produce accurate records for either the named or “shadow” workers under the

8

FLSA and MSPA. Further, as a “shadow” worker has not been through a formal

9

hiring process and subsequently named on his or her own ticket, Defendants will

10

not have given that worker the required MSPA disclosures. Therefore, summary

11

judgment is appropriate on the Secretary’s claims in Paragraphs VIII and XIV(a)-

12

(d).

13

However, there is insufficient evidence to support a grant of summary

14

judgment on the claim in Paragraph XIV(e). Paragraph XIV(e) alleges that

15

Defendants violated 29 U.S.C. §§ 1821(e) and 1831(d) by “failing to provide to

16

migrant and seasonal agricultural workers, copies of payroll records required to be

17

made, kept and preserved under §§ [1821(d) and 1831(c)] of the [MSPA].” ECF

18

No. 54 at 14. Section 1821(e) provides that

19
20

Each farm labor contractor shall provide to any other farm labor
contractor, and to any agricultural employer and agricultural
association to which such farm labor contractor has furnished migrant
agricultural workers, copies of all records with respect to each such

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 12

1
2

worker which such farm labor contractor is required to retain by
subsection (d)(1) of this section. The recipient of such records shall
keep them for a period of three years from the end of the period of
employment.

3
29 U.S.C. § 1821(e); see also 29 U.S.C. § 1831(d) (same requirement for
4
employers of seasonal agricultural workers). Sections 1821(e) and 1831(d)
5
concern an employer’s record-producing obligation where workers are furnished to
6
other employers. See Oritz v. Paramo, 06-3062 RBK/AMD, 2009 WL 4575618, at
7
*6 (D.N.J. Dec. 1, 2009) (finding violation of § 1821(e) where employer had failed
8
to provide records to another employer). Here, the Secretary alleges that
9
Defendants violated §§ 1821(e) and 1831(d) by failing to provide the required
10
records to the migrant and seasonal agricultural workers themselves. ECF No. 54
11
at 14. No allegations have been made that Defendants “loaned” employees to
12
another employer. Sections 1821(e) and 1831(d) are not applicable to the present
13
dispute as it has been presented to the Court. Therefore, summary judgment for
14
the Secretary on Paragraph XIV(e) is denied.
15
Defendants’ counterarguments are unavailing. A policy prohibiting ticket
16
sharing does not create a genuine issue of material fact about whether “shadow”
17
workers exist amongst Defendants’ workforce. See Wirtz v. Bledsoe, 365 F.2d 277,
18
278 (10th Cir. 1966) (noting that the “fact that the defendants gave instructions not
19
to work overtime is not a defense to a claim for overtime actually worked”). In
20
fact, the very existence of a policy and examples of its enforcement tend to prove

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 13

1

that ticket sharing occurs. Under the FLSA and MSPA, it is ultimately

2

Defendants’ responsibility to keep accurate records and make the required

3

disclosures to all workers. A policy designed to promote compliance with

4

statutory mandates does not by its existence negate evidence that the workers

5

failed to comply with the policy.

6

At this time, there are genuine issues of material fact regarding the

7

prevalence of “shadow” workers amongst Defendants’ workforce. However, while

8

prevalence will impact a determination of wages owed, questions as to the number

9

of “shadow” workers does not raise a genuine issue of material fact concerning

10

whether those workers exist at all. As the existence of even a single “shadow”

11

worker would result in inaccurate records and insufficient disclosures, prevalence

12

is irrelevant to the instant motion for summary judgment.

13

During oral argument, Defendants drew a comparison between the alleged

14

recordkeeping and disclosure violations and established case law concerning

15

unpaid overtime under the FLSA. An employer’s duties concerning overtime are,

16

however, distinguishable from its recordkeeping and disclosure obligations. A

17

critical factor in the overtime decisions was that the defendant employers did not

18

have knowledge that the employees were working overtime. See Forrester v.

19

Roth’s I. G. A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981) (“However,

20

where an employer has no knowledge that an employee is engaging in overtime

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 14

1

work . . . the employer’s failure to pay for overtime hours is not a violation.”); see

2

also White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 876 (6th Cir.

3

2012) (“When the employee fails to follow reasonable time reporting procedures

4

she prevents the employer from knowing its obligation to compensate the

5

employee and thwarts the employer’s ability to comply with the FLSA.”).

6

Recordkeeping violations are substantively different from those in the overtime

7

context. See Mt. Clemens, 328 U.S. at 687 (“When the employer has kept proper

8

and accurate records the employee may easily discharge his burden by securing the

9

production of those records. But where the employer’s records are inaccurate or

10

inadequate . . . a more difficult problem arises.”). As Defendants had knowledge

11

that ticket sharing occurred, the Court is unpersuaded by Defendants’ analogy.

12

The “shadow” workers did not “thwart” Defendants’ ability to comply with the

13

FLSA and MSPA. Defendants’ policy and enforcement were simply ineffectual,

14

resulting in Defendants’ failure to discharge its statutory obligations.

15

Defendants also cite Solis v. Washington, 08-5362 RJB, 2009 WL 2855441

16

(W.D. Wash. Aug. 31, 2009), in support. In Solis, the court found a genuine issue

17

of material fact concerning the procedure used to record overtime hours. Id. at *3.

18

As Defendants have no records for any “shadow” workers, Solis is distinguishable.

19
20

Again, Defendants are correct that there are genuine issues of material fact
concerning whether Defendants had an “accepted practice” of allowing ticket

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 15

1

sharing and whether Defendants failed to make the required disclosures to “a

2

significant portion” of its workforce. See ECF No. 115 at 7. However, these

3

disputes are relevant to wages owed, not a determination that the provisions in

4

question were violated. Where ticket sharing occurred, Defendants were unable to

5

comply with the mandatory recordkeeping and disclosure requirements of the

6

FLSA and MSPA. Therefore, summary judgment is appropriate on Paragraphs

7

VIII and XIV(a)-(d). Summary judgment is denied on Paragraph XIV(e).

8

II.

Whether Injunctive Relief is Appropriate to Enjoin Future
Violations of the FLSA and MSPA

9
The Secretary argues that an injunction is necessary to enjoin further
10
violations of the FLSA and MSPA. ECF No. 128 at 5. The Secretary contends that
11
Defendants do not take their responsibilities as an employer seriously, and that an
12
injunction would force Defendants to abandon the status quo and make the
13
necessary changes to comply with the law. Id. at 6–7. Defendants argue that an
14
injunction is inappropriate as they are continuing to make a good faith effort to
15
comply with the FLSA and MSPA. ECF No. 115 at 8.
16
The Ninth Circuit has held that
17
18
19
20

[i]n deciding whether to grant injunctive relief, a district court must
weigh the finding of violations against factors that indicate a reasonable
likelihood that the violations will not recur. A dependable, bona fide
intent to comply, or good faith coupled with extraordinary efforts to
prevent recurrence, are such appropriate factors. An employer’s pattern
of repetitive violations or a finding of bad faith are factors weighing
heavily in favor of granting a prospective injunction.

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 16

1
Brock v. Big Bear Market No. 3, 825 F.2d 1381, 1383 (9th Cir. 1987). “Current
2
compliance alone is not a sufficient ground for denying injunctive relief.” Brock v.
3
Shirk, 833 F.2d 1326, 1332 (9th Cir. 1987), judgment vacated on other grounds,
4
488 U.S. 806 (1988). Further, “[i]n exercising its discretion, the district court must
5
give substantial weight to the fact that the Secretary seeks to vindicate a public,
6
and not a private, right.” Marshall v. Chala Enterprises, Inc., 645 F.2d 799, 804
7
(9th Cir. 1981). “[P]rospective injunctions are essential in effectuating the policy
8
of the FLSA because they place the risk of non-compliance squarely on the
9
employer.” Donovan v. Sureway Cleaners, 656 F.2d 1368, 1375 (9th Cir. 1981).
10
As quoted favorably by the Ninth Circuit:
11
12
13
14
15

The injunction subjects the defendants to no penalty, to no hardship. It
requires the defendants to do what the Act requires anyway to comply
with the law . . . We do not say or imply that injunctions should be
issued freely, without regard for the facts, simply because it is the
Government asking for the injunction. We say that the manifest
difficulty of the Government’s inspecting, investigating, and litigating
every complaint of a violation weighs heavily in favor of enforcement
by injunction after the court has found an unquestionable violation of
the Act.

16
Marshall, 645 F.2d at 804 (quoting Mitchell v. Pidcock, 299 F.2d 281, 287 (5th
17
Cir. 1962)).
18
The Court finds that an injunction enjoining Defendants to comply with the
19
recordkeeping and disclosure provisions of the FLSA and MSPA is appropriate.
20
However enforced, Defendants’ policy prohibiting ticket sharing has been

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 17

1

ineffectual. Although Defendants may well have acted in good faith, Defendants

2

have presented no evidence of “extraordinary efforts to prevent recurrence.” See

3

Brock, 825 F.2d at 1383. Further, Defendants’ argument that an injunction would

4

not solve the problem as the workers would not be enjoined from ticket sharing

5

lands wide of the mark. As described above, the Court has found unquestionable

6

violations of the FLSA and MSPA recordkeeping and disclosure provisions. The

7

injunction enjoins the Defendants from future violations. It is Defendants’

8

obligation to implement the necessary changes to keep accurate records and make

9

the required disclosures to all workers.1

10

As such, Defendants are enjoined from committing future violations of the

11

FLSA and MSPA recordkeeping and disclosure provisions noted above. 2 Given

12
13

1

14

instituting tighter controls on persons picking in the fields or holding periodic

15

checks throughout the day to ensure that all workers have their own ticket. Further,

16

as noted by the Secretary, Defendants apparently have a workable system for

17

keeping children out of the fields. See ECF No. 97-1 at 4. It therefore should not be

18

impossible for Defendants to monitor who is picking in their fields at a given time.

19

2

20

was necessary before the Court could enter an injunction, such a hearing is not

The Secretary put forth a number of options during oral argument including

Although defense counsel stated during oral argument that an evidentiary hearing

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 18

1

that Defendants must revise their current procedures to comply with the Court’s

2

Order, the Court will give Defendants a ninety day grace period during which to

3

implement this Order.

4
5

III.

Standard for Determining Wages Owed

The Secretary requests that this Court find that the Department of Labor is

6

entitled to prove wages owed as a matter of just and reasonable inference under Mt.

7

Clemens. ECF No. 96 at 21. Defendants object that the Secretary has not moved

8

for a declaration to this effect. ECF No. 115 at 10.

9

The Court finds, as a procedural matter, that the Secretary is entitled to

10

prove wages owed through just and reasonable inference. Under Mt. Clemens,

11
12
13
14
15
16

When the employer has kept proper and accurate records the employee
may easily discharge his burden by securing the production of those
records. But where the employer's records are inaccurate or inadequate
and the employee cannot offer convincing substitutes a more difficult
problem arises. The solution, however, is not to penalize the employee
by denying him any recovery on the ground that he is unable to prove
the precise extent of uncompensated work. Such a result would place a
premium on an employer's failure to keep proper records in conformity
with his statutory duty; it would allow the employer to keep the benefits
of an employee's labors without paying due compensation as
contemplated by the Fair Labor Standards Act. In such a situation we

17

required “when the facts are not in dispute.” Charlton v. Estate of Charlton, 841

18

F.2d 988, 989 (9th Cir. 1988). As the Court has determined that no genuine issue

19

of material fact exists concerning the relevant FLSA and MSPA allegations, the

20

Court will enter the injunction without holding a preliminary evidentiary hearing.

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 19

1
2
3
4
5

hold that an employee has carried out his burden if he proves that he
has in fact performed work for which he was improperly compensated
and if he produces sufficient evidence to show the amount and extent
of that work as a matter of just and reasonable inference. The burden
then shifts to the employer to come forward with evidence of the precise
amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee's
evidence. If the employer fails to produce such evidence, the court may
then award damages to the employee, even though the result be only
approximate.

6
Mt. Clemens, 328 U.S. at 687–88. As the Court has found that, due to the existence
7
of “shadow” workers, Defendants’ records are inadequate, the Secretary is entitled
8
to prove wages owed as a matter of just and reasonable inference. Any
9
determination concerning the reasonableness of the Secretary’s inference is,
10
however, premature given the posture of this case.
11
Accordingly, IT IS HEREBY ORDERED:
12
(1) The Secretary’s Motion for Summary Judgment Regarding the
13
Secretary’s Paragraph VIII and XIV(a)-(e) Claims for Relief Under the
14
Fair Labor Standards Act and the Migrant and Seasonal Agricultural
15
Workers Protection Act, ECF No. 96, is GRANTED IN PART and
16
DENIED IN PART. The Court grants summary judgment for the
17
Secretary on the Paragraphs VIII and XIV(a)-(d) claims. The Court
18
denies summary judgment on the Paragraph XIV(e) claim.
19
(2) The Court enters an injunction against Defendants as outlined above.
20
Defendants are enjoined from future violations of the recordkeeping and

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 20

1

disclosure provisions listed in Paragraphs VIII and XIV(a)-(d), and must

2

take whatever steps are necessary to prevent “shadow” workers from

3

picking on a named worker’s ticket or being present in the blueberry

4

fields. Defendants have a ninety day grace period during which to

5

implement this Order.

6

(3) At a later date, the Secretary will be permitted to prove wages owed as a

7

matter of just and reasonable inference under Anderson v. Mt. Clemens.

8

The District Court Clerk is hereby directed to enter this Order and to provide

9
10

copies to counsel.
DATED this 9th day of November 2015.

11
12
13

s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
Chief United States District Judge

14
15
16
17
18
19
20

ORDER GRANTING IN PART MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 21