TROY L. NUNLEY, District Judge.
Plaintiff Eugene, United States Secretary of Labor, and Settling Defendants Munger Bros. LLC, Crowne Cold Storage, LLC, and Sarbanand Farms, LLC (collectively "Defendants"), have agreed to resolve the disputes between them in this civil action and consent to the entry of this Consent Judgment as provided below.
A. The Secretary filed a complaint alleging that Defendants violated the Migrant and Seasonal Worker Protection Act ("MSPA") and the H-2A Program under Section 218 of the Immigration and Nationality Act ("INA") as amended by the Immigration and Reform Control Act of 1986 ("IRCA").
B. Defendants waive formal service and acknowledge receipt of a copy of the Secretary's Complaint.
C. Defendants waive their answers and any defenses to the Secretary's Complaint.
D. Defendants agree that the Court has jurisdiction over the parties and subject matter over this civil action and that venue lies in the United States District Court for the Eastern District of California, Sacramento Division.
E. Defendants acknowledge that they and any of their officers, agents, servants, employees, successors, attorneys, and all persons in active concert or participation have notice of, and understand, the provisions of this Consent Judgment.
Therefore, upon motion of the attorneys for the Secretary, and for cause shown,
Defendants are also enjoined for three years from using the services of H-2A Labor Contractors
1. Defendants shall not, contrary to 20 C.F.R. § 655.122(a), engage in preferential treatment towards H-2A workers. Defendants shall not fail to contact or hire all potentially qualified U.S. workers, including those previously hired through farm labor contractors ("FLCs").
2. Defendants shall not, contrary to 20 C.F.R. § 655.135(d), unlawfully reject U.S workers. Defendants shall not fail to hire or delay hiring qualified U.S. workers previously employed, including those previously hired through FLCs.
3. Defendants shall not, contrary to 20 C.F.R. § 655.153, fail to contact and offer employment to all U.S. workers that worked for Defendants the previous year, including those hired through FLCs.
4. Defendants shall not, contrary to 20 C.F.R. § 655.121(a)(3), fail to include all of the employment terms and working conditions on the job order, including the actual anticipated weekly hours.
5. Defendants shall not, contrary to 20 C.F.R. § 655.122(q), fail to provide H-2A workers with a copy of the work contract or job order no later than the time at which the worker applies for the visa.
6. Defendants shall not, contrary to 20 C.F.R. § 655.135(1), fail to post and maintain in a conspicuous place at the place of employment, a poster provided by the Secretary, the current version of which is available at https://www.dol.gov/whd/ag/ag_h-2a.htm.
7. Defendants shall not, contrary to 20 C.F.R. § 655.122(1), fail to pay the required rate of pay, including time spent waiting for transportation to and from the job site, to the extent required by applicable State or Federal law.
8. Defendants shall not, contrary to 20 C.F.R. § 655.122(i), fail to pay H-2A workers for at least three-fourths of the workdays of the total period beginning with the worker's first workday after arrival to the place of employment or the advertised contractual first date of need, whichever is later, and ending on the expiration date of the work contract. Defendants shall not fail to pay U.S. workers in corresponding employment at least three-fourths of the workdays as specified in this paragraph.
9. Defendants shall not, contrary to 20 C.F.R. § 655.122(j), fail to keep accurate and adequate records with respect to workers' earnings.
10. Defendants shall not, contrary to 20 C.F.R. § 655.122(k), fail to furnish workers with accurate hours (or units produced daily if paid piece rates) and earnings statements.
11. Defendants shall not, contrary to 20 C.F.R. § 655.122(d), fail to provide or secure housing that complies with the applicable housing safety and health standards for H-2A workers and U.S. workers in corresponding employment.
12. Defendants shall not, contrary to 20 C.F.R. § 655.122(h)(4), fail to provide transportation to the workers that complies with Federal, State, or local laws and regulations, and 29 U.S.C. § 1841 and 29 C.F.R. §§ 500.105, 500.120-128.
13. Defendants shall not, contrary to 20 C.F.R. § 655.135(e), fail to comply with applicable Federal, State, and local laws and regulations.
14. Defendants, jointly and severally, shall not continue to withhold payment of $2.5 million in back wages hereby found to be due for the Subject Period under the H-2A program to U.S. Workers and H-2A workers named in the attached Exhibit A.
15. Defendants shall not, contrary to MSPA §§ 201(a) and 301(a), 29 U.S.C. §§ 1821(a) and 1831(a), fail to disclose to all migrant and seasonal agricultural workers
16. Defendants shall not, contrary to MSPA §§ 202(a) and 302(a), 29 U.S.C. §§ 1822(a) and 1832(a), and 29 C.F.R. § 500.81, fail to pay, when due, all wages owed to migrant and seasonal agricultural workers whom they employ. Defendants shall ensure that any FLCs with whom Defendants contract include in the contract that the FLC must pay all migrant and seasonal workers all wages when due.
17. Defendants shall not, contrary to MSPA §§ 201(d)(2) and 301(c)(2), 29 U.S.C. §§ 1821(d)(2) and 1831(c)(2), and 29 C.F.R. § 500.80(d), fail to provide each migrant and seasonal employee for each pay period with an itemized written statement containing the information listed in §§ 201(d)(1) and 301(c)(1). Defendants shall ensure that any FLCs with whom Defendants contract include in the contract that the FLC must provide migrant and seasonal worker accurate wage statements.
18. Defendants shall not, contrary to MSPA §§ 202(c) and 302(c), 29 U.S.C. §§ 1821(d)(2) and 1831(c)(2), violate the terms of any employment agreements made with any seasonal or agricultural worker. Defendants shall ensure that any FLCs with whom Defendants contract include in the contract that the FLC must not breach any employment agreements with any seasonal or agricultural worker.
19. Defendants shall not, contrary to MSPA § 402, 29 U.S.C. § 1842, and 29 C.F.R. § 500.71, hire, use, or employ any person to perform FLC activities (including recruiting, soliciting, hiring, and transporting migrant and seasonal agricultural workers) who does not possess a valid FLC or FLC Employee Certificate of Registration from the Secretary authorizing those FLC activities;
20. Defendants shall not, contrary to MSPA §§ 201(d)(1) & (e), 301(c)(1) & (d), 29 U.S.C. §§ 1821(d)(1) & (e), 1831(c)(1) & (d), and 29 C.F.R. § 500.80(a)-(c), fail to make, keep or maintain the specified time and pay records;
21. Defendants shall not, contrary to MSPA §§ 201(b) and 301(b), 29 U.S.C. §§ 1821(b) and 1831(b), and 29 C.F.R. §§ 500.75 and 500.76, fail to post in a conspicuous place readily accessible to covered workers a MSPA poster.
22. If Defendants apply for an H-2A certification after the 3-year debarment, Defendants must engage in recruiting and hiring efforts that are customary in the area of intended employment of H-2A workers and for the type of position, including contacting FLCs to meet their labor needs, and comply with all applicable laws including 20 C.F.R. § 655.154;
23. Defendants shall purchase radio advertisements in English and Spanish to announce available jobs at least 30 days before Defendants submit their ETA Form 790 to the appropriate State Workforce Agency ("SWA"). The advertisements shall run at least once a week. The advertisements shall include the telephone number referenced in ¶ 24 for workers to apply to the job. Defendants shall run these advertisements at least until the H-2A worker's first workday or advertised contractual first date of need. Defendants shall maintain documentation for two years to show that they purchased the advertisements and make it available to the Wage and Hour Division upon request.
24. At least 30 days before Defendants submit their ETA Form 790 to the appropriate SWA, they shall establish at least one phone number for potential applicants to call and apply for the positions available. Defendants shall keep a log of all callers, including their name, telephone number, position sought, and whether a position was offered. Defendants shall keep this phone line opened at least until the H-2A worker's first workday or advertised contractual first date of need. Defendants shall maintain this call log for three years and make it available to the Wage and Hour Division upon request.
25. Defendants shall comply with ¶¶ 22 — 24 for five years after entry of this Consent Judgment.
26. If Defendants apply for an H-2A certification after the 3-year debarment, Defendants shall create a video in Spanish and shall provide a transcript of the video to the Secretary by e-mailing the transcript to Brandon Nuess, Assistant District Director, at Nuess.Brandon@dol.gov. The Secretary shall provide any feedback on the transcript within 15 days of receipt of the transcript. Defendants will agree to make the changes and edits suggested by the Secretary. The video shall include the following:
27. Defendants shall provide this video to any employees or agencies recruiting potential H-2A workers for Defendants. Defendants shall require its employees or recruiting agencies to show the video to all potential H-2A workers before the worker attends the visa interview with U.S. Consulate.
28. For three years, Defendants shall permit the Secretary to provide annual trainings on worker rights and protections on MSPA and the H-2A Program for all Defendants' supervisors and foremen, and all of the FLCs' supervisors.
29. Within one year of entry of this Consent Judgment, Defendants shall establish and maintain for five years a phone number(s) that is available exclusively to H-2A workers and U.S. workers, including workers hired by FLCs, to call anonymously to raise concerns or complaints about their working, transportation, and housing conditions.
30. For five years after entry of this Consent Judgment, Defendants shall require in writing that all FLCs who furnish agricultural workers are transportation authorized and are compliant with the transportation and safety requirements established by MSPA.
31. For five years after entry of this Consent Judgment, Defendants shall require each FLC to have each employee who will work at Defendants' farm to indicate whether the FLC employee will require FLC provided transportation to perform services for Defendants. Defendants shall provide each FLC with the attached form, Exhibit B to provide to the employees. Defendants shall maintain a copy of these forms for two years and make them available to the Wage and Hour Division upon request.
32. For five years after entry of this Consent Judgment, Defendants shall require in writing that all FLCs retained by a Defendant commit to their compliance with MSPA. For a period of three years after entry of this Consent Judgment, Defendants will conduct random and unannounced audits at each job location at the peak time and end of the year as described in this paragraph.
33. Defendants shall distribute the following notices to Defendants' covered employees for a period of 3 years: (1) Notice of H-2A workers' rights under federal law, (2) Notice of US workers' rights under the H-2A program, and (3) Notice of US workers' rights under MSPA.
34. Defendants shall not request, solicit, suggest, or coerce, directly, or indirectly, any employee to return or to offer to return to the Defendants or to someone else for the Defendants, any money in the form of cash, check, or any other form, for wages previously due or to become due in the future to said employee under the provisions of this judgment, MSPA, or the H-2A program. Defendants shall also not accept, or receive from any employee, directly or indirectly, any money in the form of cash, check, or any other form, for wages heretofore or hereafter paid to said employee under the provisions of this consent judgment, MSPA, or the H-2A program. Defendants shall also not discharge or in any other manner discriminate, nor solicit or encourage anyone else to discriminate, against any such employee because such employee has cooperated with the Secretary's investigation, testified against Defendants, or received or retained money due to him from Defendants under the provisions of this judgment, MSPA or the H-2A program.
35.
36. Defendants shall satisfy the monetary provisions of this Consent Judgment as set forth below.
37. The parties represent that Defendants, jointly and severally, will pay the sum of $44,227.44 in back wages and civil money penalties under MSPA §§ 202(a), 302(a), 503, 29 U.S.C §§ 1822(a), 1832(a), and 1853. This amount encompasses the back wages owed to employees in Exhibit A for the Subject Period under MSPA.
38. Each party shall bear all fees and other expenses (including court costs) and attorneys' fees that might be available under the Equal Access to Justice Act incurred by such party in connection with any stage of this proceeding to date.
39. Nothing in this Consent Judgment and Order is binding on any government agency other than the United States Department of Labor, Wage and Hour Division.
40. This Court shall retain jurisdiction of this action for purposes of enforcing compliance with the terms of the Consent Decree. The Plaintiff agrees that it will not oppose Defendant's motion to modify the Consent Judgment to lift the permanent injunctions herein if it is filed at least five years after entry of the Consent Judgment, and Defendants have complied with this Judgment.
