B. AVANT EDENFIELD, District Judge.
This case arises from the temporary employment of Mexican farm workers through the Department of Labor's ("DOL") H-2A program. The Defendants, Delbert C. Bland and Bland Farms, LLC (collectively "Bland Farms") hired the Plaintiffs and other H-2A guest workers in
Bland Farms is a Georgia limited liability company based in Glennville, Georgia. Doc. # 170 at 3. Bland Farms imports workers under the DOL's H-2A temporary visa program to assist in the planting of its onion crop in the fall of each year and the harvest of its onion crop in the spring. Id. The H-2A program allows the temporary employment of alien farm workers within the U.S. if an employer can show that (1) there are insufficient domestic workers who are willing, able, and qualified to perform the work at the time and place needed, and (2) the employment of aliens will not adversely affect the wages and working conditions of domestic workers. See 8 U.S.C. §§ 1184(c)(1), 1188(a)(1). Federal regulations establish the conditions under which these alien workers are permitted to work in the U.S. An employer must compensate H-2A workers at a rate not less than the federal minimum wage, the prevailing wage rate in the area, or the "adverse effect wage rate" ("AEWR"),
If an expense incurred by the H-2A worker is determined to be "primarily for the benefit of the employer," the employer must reimburse the employee during the first workweek in which the expense arose up to the amount needed to comply with the federal minimum wage laws. Arriaga v. Fla.-Pac. Farms, LLC, 305 F.3d 1228, 1237 (11th Cir.2002). Expenses deemed "primarily for the benefit of the employer" may include transportation costs from the worker's home country to the place of employment, visa costs, visa application fees, and immigration fees for entry documents. Id. at 1242, 1244.
When employers apply to the DOL for admission of H-2A workers, they are required to fill out an application, also referred to as a "clearance order." In the clearance order, the employer certifies that "[t]his job order describes the actual terms and conditions of the employment being offered by me, and contains all the material terms and conditions of the job." 20 C.F.R. § 653.501(d)(3). The clearance order eventually becomes the contract between the employers and the farm workers. Arriaga, 305 F.3d at 1233 n. 5.
Beginning with the spring harvest season of 2002, and ending with the spring harvest season of 2007, Bland Farms contracted with International Labor Management Corporation ("ILMC"), formerly a co-defendant in this action, to assist Bland Farms in obtaining agricultural clearance orders. Doc. # 170 at 3. ILMC offered Bland Farms a turnkey program whereby ILMC would perform "all aspects of crafting/modifying
Plaintiffs in this case, H-2A workers who were employed by Bland Farms, brought this case as a collective action under 29 U.S.C. § 216(b) of the FLSA and as a class action under the common law of contracts.
The first claim for relief in Plaintiffs' Third Amended Complaint alleges that Bland Farms violated Georgia's Right to Work Law, O.C.G.A. § 34-6-21 et seq., by barring Plaintiffs and other union members from employment with Bland Farms because of their union status. Doc. # 73 at 52-53.
Plaintiffs' second claim for relief is largely duplicative of the first. Id. at 53-55. This claim, however, is one for breach of contract premised on Bland Farms' promise in the clearance order to comply with all employment-related laws (which implicitly includes Georgia's Right to Work Law). Id.
Plaintiffs' third claim for relief is also a breach of contract claim, wherein they allege that Defendants have violated the terms of the clearance order, which, inter alia, promised (1) compliance with all employment-related laws, (2) reimbursement for all inbound transportation expenses, and (3) payment of wages on a weekly basis for all of their H-2A employees at a minimum wage rate equal to the AEWR published by the U.S. Department of Labor on an annual basis. Id. at 55-56.
Plaintiffs' fourth and final claim for relief is brought pursuant to the FLSA's wage and hour provisions. Specifically, Plaintiffs contend that Bland Farms failed to reimburse them within the first workweek, or within a reasonable time thereafter, for expenses Plaintiffs incurred that were "primarily for the benefit of the employer" under the analysis adopted by the Eleventh Circuit in Arriaga. Id. at 56-57.
Defendants have moved for summary judgment on the first, second, and fourth claims for relief in Plaintiffs' Third Amended Complaint and for partial summary judgment on Plaintiffs' third claim for relief. Doc. # 169.
Plaintiffs, meanwhile, have moved, pursuant to F.R.Civ.P. 56(e) and 26(a)(1)(A)(i), to strike the affidavits that Defendants have relied upon in support of their motion for summary judgment. Doc. # 176.
The Court hereby enters this consolidated Order to resolve both Plaintiffs' motion to strike, id., and Defendants' motion for summary judgment, doc. # 170. Because resolution of evidentiary issues in Plaintiffs' motion will influence the evidence to
The Court will address the objections in Plaintiffs' motion to strike in numerical order, as listed in Plaintiffs' motion. Doc. # 176.
Plaintiffs object to paragraphs five and seven of Jack Eugene Gibson's affidavit,
"Under [F.R.Civ.P.] 26, all parties must disclose expert opinion reports when directed by the court, or at least ninety days before trial." Cooper v. S. Co., 390 F.3d 695, 728 (11th Cir.2004), over-ruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006). "Notice of the expert witness' name is not enough. Each witness must provide a written report containing `a complete statement of all opinions to be expressed and the basis and reasons therefor. . . .'" Prieto v. Malgor, 361 F.3d 1313, 1317-18 (11th Cir.2004) (quoting F.R.Civ.P. 26(a)(2)(B)). A party "that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) . . . is not, unless such failure is harmless, permitted to use as evidence at a trial . . . any witness or information not so disclosed." F.R.Civ.P. 37(c)(1). The Court, however, retains discretion to permit a party to submit an expert report after the discovery deadline when the opposing party is given time to prepare a response and suffers no prejudice. See Ferguson v. Bombardier Servs. Corp., 244 Fed.Appx. 944, 950 (11th Cir. 2007) (finding no prejudice when party opposing evidence had eight months before trial to prepare for testimony).
While the Defendants here have not willfully disobeyed the Court's discovery order, the Court recognizes that Plaintiffs would be prejudiced if they are not provided an opportunity to conduct discovery with respect to Mr. Gibson's new opinion. The Court thus strikes the affidavit from consideration when ruling on Defendants' motion for summary judgment.
However, because establishing the cost of housing may be necessary for this case to advance, the Court will permit Defendants to enter Mr. Gibson's new affidavit into evidence after they provide Plaintiffs with an opportunity to depose Mr. Gibson. Objection one is sustained.
Plaintiffs object to paragraph nine of Therese Bouwense's affidavit,
Bland Farms, however, is not required to keep records that would permit such a determination. See 29 C.F.R. § 516.27 ("Separate records of the cost of each item furnished to an employee need not be kept. . . . The cost of maintenance, utilities, and repairs for all the houses may be shown together."). Plaintiffs cite to a DOL Handbook, which states that, when calculating the cost of housing for each worker, the cost of lodging should be prorated "[w]here the facility is used for other purposes, in addition to lodging." Field Operations Handbook of Department of Labor § 30c06(d)(3); doc. # 194 at 5. Plaintiffs, however, have provided no evidence that the labor camps were used for anything other than lodging. The Court therefore finds that Ms. Bouwense's testimony is relevant, supported by a proper foundation, and admissible. Objection two is overruled.
Plaintiffs object to the seventh paragraph of Ms. Bouwense's affidavit, doc. # 169-5 at 12-13, in which Ms. Bouwense describes her interactions with Nahum Ornelas, a former Bland Farms' recruiter. Doc. # 176 at 3-6. Plaintiffs argue that Bouwense's statement that "[Ornelas] would come back to me and review his notes with me regarding his contact with workers" is inadmissible hearsay. Id. This is simply not hearsay. It is not a "statement" made by someone other than the declarant, nor was it offered "to prove the truth of the matter asserted." See F.R.Evid. 801.
Additionally, Ms. Bouwense's statement that "[Ornelas] would supply [her] with handwritten notes" is not testimony regarding the content of the notes, as Bouwense made the statement merely to support her claim that she had personal knowledge that Ornelas was involved in recruiting. Doc. # 169-5 at 12-13.
Finally, Ms. Bouwense's statement that "[a]t least 4 months prior to the start of a harvest and/or planting season, [Ornelas] would begin to contact workers to see if they wanted to work at Bland" was made with sufficient personal knowledge to allow admission. Id. Objection three is overruled.
On virtually identical grounds, Plaintiffs again object to paragraph seven of Ms. Bouwense's affidavit, id. at 12-13, in which she describes her interactions with Jose
Plaintiffs object to paragraph (4) in paragraph six of Ms. Bouwense's affidavit, doc. # 169-5 at 11, in which she attests to the accuracy of a Spanish to English translation of documents signed by Plaintiffs and contained in exhibit fourteen to her affidavit, doc. # 169-6 at 57-58. Doc. # 176 at 8-11. Plaintiffs also object to the accuracy of the translation itself. Id. Defendants have indicated that they will accept the substitute translation that Plaintiffs have submitted. Doc. # 189 at 5. Objection five is sustained.
Plaintiffs object to paragraph eleven of Ms. Bouwense's affidavit, doc. # 169-5 at 17-18, in which she states that Bland Farms had been the "sole employer" of H-2A workers employed at Bland Farms. Doc. # 176 at 9. Plaintiffs argue that F.R.Evid. 701 and 702 prohibit Ms. Bouwense from offering her opinion on a question of law Id. There is a legal question looming in this case as to whether other companies were "employers" of the Plaintiffs under the FLSA's definition of that term. See infra section IV.C.ii.
The facts in paragraph eleven upon which Ms. Bouwense's opinion is based are admissible. Her conclusion that Bland Farms is the "sole employer" is a closer question. The Court, however, has no reason to strike this testimony at the summary judgment stage as the Court will draw its own legal conclusions regardless of any purported legal opinion offered by Ms. Bouwense. Should this testimony somehow become relevant at trial, the Court will reevaluate the admissibility of this statement. Objection six is overruled.
Plaintiffs object to the fourth paragraph of Ms. Bouwense's affidavit, doc. # 169-5 at 2-6, in which she offers her opinion and testimony as to what a 2002 agreement between Bland Farms and ILMC "expressly contemplated." Doc. # 176 at 10-11. Specifically, Ms. Bouwense testifies that the original 2002 agreement submitted to Bland Farms by ILMC was changed "to reflect the fact that ILMC would not be recruiting H-2A workers in Mexico." Doc. # 169-5 at 3. Plaintiffs claim that because Ms. Bouwense was not employed by Bland until 2004, she does not have sufficient personal knowledge to testify about contract negotiations that took place in 2002. Doc. # 176 at 10; see F.R.Evid. 602. The Court agrees and finds that because Ms. Bouwense was not present for the contract negotiations, she did not have sufficient personal knowledge to make the statement in question. See Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir.2006) (Under the "personal knowledge" standard, an affidavit is inadmissible if the witness could not have actually perceived or observed that to which he testifies.). Objection seven is sustained.
Plaintiffs also object to paragraph four of Ms. Bouwense's affidavit, doc.
F.R.Evid. 1002 requires that a party offer the "original writing" when trying to prove the contents of the writing. F.R.Evid. 1003, however, provides that "[a] duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate of the original." Plaintiffs have not raised any question as to the authenticity of the proposed 2002 contract, and the Court sees nothing unfair about permitting the submission of a duplicate, rather than the original.
As to whether the proposed 2002 contract is a "properly authenticated copy," F.R.Evid. 901 states that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Here, Ms. Bouwense has attested under oath that the copy of the proposed 2002 contract is a "true and correct copy" of an original that was submitted to Bland Farms. Doc. # 169-5 at 3. While it is true that Ms. Bouwense may not have personal knowledge that it was submitted by ILMC to Bland Farms in 2002, the document is labeled "2002 ILMC Agstmt h2a.wps" which supports Ms. Bouwense's testimony that this was indeed a 2002 version of ILMC's H2-A contract. Id. at 24. The Court thus finds that there is sufficient evidence that the document in question is what Ms. Bouwense claims it to be—namely a version of a 2002 ILMC contract which Bland Farms never signed.
Plaintiffs object to paragraph four of Clarke Yearous' affidavit,
Plaintiffs object to paragraphs three, four, and six through eleven of Sloan Lott's affidavit,
Plaintiffs object to the fifth paragraph of Mr. Lott's affidavit, doc. # 169-4 at 2-3, in which he describes the recruiting services provided by Ricardo Rodriguez to Bland Farms. Id. at 13. Plaintiffs' contend that Defendants' F.R.Civ.P. 26(a)(1)(A) discovery disclosure did not indicate that Mr. Lott would testify on this subject matter. Id. at 13.
Rule 26(a)(1)(A)(i) requires a party to disclose "the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses...." F.R.Civ.P. (a)(1)(A)(i). "Indicating briefly the general topics on which such persons have information should not be burdensome, and will assist other parties in deciding which depositions will actually be needed."
Advisory Committee Notes to 1993 Amendment to F.R.Civ.P. 26(a). "The disclosure requirements should, in short, be applied with common sense in light of the principles of Rule 1, keeping in mind the salutary purposes that the rule is intended to accomplish. The litigants should not engage in gamesmanship with respect to the disclosure obligations." Id.
Here, Defendants disclosed the identity and contact information for Mr. Lott in a supplemental response to their Rule 26(a)(1)(A)(i) initial disclosure submitted on 12/2/08. Doc. # 189 at 7. The subjects of his knowledge were described as follows: "Mr. Lott has information concerning negotiations with ILMC representatives, and representations made by those representatives, with respect to services to
Plaintiffs argue that this is outside the scope of Mr. Lott's identified discoverable information because it deals with Defendants' business dealings with Mr. Rodriguez, which took place before Bland Farms began using ILMC's services in 2002. Doc. # 177 at 15. The Court agrees, and accordingly strikes the fifth paragraph of Mr. Sloan's affidavit from consideration at the summary judgment stage. Objection eleven is sustained.
Plaintiffs object to the seventh paragraph of Sloan Lott's affidavit, doc. # 169-4 at 3-4, on the grounds that the statement, "North Carolina Grower Association members would benefit in that Bland would pay for all the upfront costs, including transportation to get them there," constitutes either inadmissible hearsay or inadmissible lay opinion testimony. Doc. # 176 at 16-17. Even if this statement could be attributed to a third party, it does not constitute hearsay because it is not offered for the truth of the matter asserted. Rather, as Defendants claim, the statement is asserted to establish a course of conduct between Bland Farms and ILMC. See U.S. v. Tokars, 95 F.3d 1520, 1535 (11th Cir.1996) (statements offered to explain a course of conduct do not constitute hearsay). The conclusion that splitting transportation costs with another employer would result in mutual beneficial relationship is sufficiently obvious to constitute lay opinion. Objection twelve is overruled.
In summary, Plaintiffs' motion to strike is granted in part and denied in part. Objections one, five, seven, and eleven are sustained. The remaining objections are overruled. The testimony pertinent to the sustained objections will not be considered by the Court when deciding Defendants' motion for summary judgment.
As noted earlier, Bland Defendants have moved for summary judgment on the first, second, and fourth claims for relief in Plaintiffs' Third Amended Complaint and for partial summary judgment on the third claim for relief. Doc. # 170. Summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." F.R.Civ.P. 56(c). In determining whether summary judgment is appropriate, the facts and inferences from the record are viewed in the light most favorable to the non-moving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party is "entitled to a judgment as a matter of law" when the nonmoving party fails to make a sufficient showing on an essential element of his case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d
Plaintiffs claim that Bland Farms discriminated against union members in the recruiting and hiring of H-2A workers in violation of O.C.G.A. § 34-6-21, which provides that "no individual shall be required as a condition of employment or continuance of employment to be or remain a member or an affiliate of a labor organization or to resign from or to refrain from membership in or affiliations with a labor organization." Doc. ## 73 at 52-53; 179 at 3. That section of Georgia's Right to Work Law, however, does not afford Plaintiffs a private remedy. See Sandt v. Mason, 208 Ga. 541, 544-545, 67 S.E.2d 767 (1951) ("Neither the remedy of injunction... nor the declaration that certain acts... shall amount to a misdemeanor, is made applicable to [O.C.GA. § 34-6-21], upon which the petitioners rely.... [T]he provisions of [O.C.G.A. § 34-6-21] amount to no more than a statement of the public policy of this State."). Plaintiffs concede this point, doc. # 179 at 44, so Defendants' motion for summary judgment is granted as to Plaintiffs' first claim for relief. Doc. # 170.
The merits of Plaintiffs' second claim for relief are duplicative of the first claim. Doc. # 73 at 53-55. The second claim, however, is premised on the conveyance order's promise to comply with all employment-related law, which includes O.C.G.A. § 34-6-21. Id. Because Plaintiffs' second claim for relief is separately grounded in common law contract, it sidesteps the problem that doomed Plaintiffs' first claim at its outset. See supra section IV.A.
Defendants contend that discovery has shown only one occasion when union workers were removed from Bland Farms' preferred worker list. Doc. # 170 at 4. This removal, Defendants suggest, was "the unilateral act of ILMC, was done for reasons to benefit ILMC, and ... Bland Farms was not told of the removal or the reasons for the removal by ILMC." Id. Defendants' contention here is mostly derived from the testimony of Sarah Farrell, Vice-President of ILMC. In her deposition, Ms. Farrell explains that, before 2006, ILMC and the North Carolina Grower's Association ("NCGA") often transferred farm workers between employers who were members of NCGA and employers who were clients of ILMC, which, of course, included Bland Farms. Doc. # 167 at 25. On 9/16/04, the Farm Labor Organizing Committee ("FLOC") and NCGA signed a collective bargaining agreement wherein NCGA committed to hiring FLOC members. Doc. # 170 at 25. Eventually, ILMC became concerned that the transfer of workers between ILMC and NCGA might be "viewed by outside parties as an intermingling of the two companies,"
Ms. Farrell's deposition testimony indicates that ILMC's decision to remove Plaintiffs and other FLOC members from Bland Farms' preferred worker list was indeed unilateral:
Doc. # 167 at 20 (emphasis added).
Plaintiffs, meanwhile, argue that the removal of FLOC members from the preferred worker list was not ILMC's unilateral decision, and they emphasize that "the fact of that removal and the reasons for their removal" were communicated to Bland Farms via email on 3/1/06. Doc. # 179 at 45. In the 3/1/06 email, sent by Dorothy Schieler, an ILMC employee, to Therese Bouwense, Ms. Schieler identified three workers and advised that, "[T]he following workers are union members so I would strongly suggest not adding them to your worker list." Doc. # 170 at 27. Ms. Bouwense replied via email, "Please remove the union members and ... replace them with substitutes. I appreciate you letting us know about the union members." Id. From this brief, Plaintiffs somehow extrapolate the following conclusion:
Doc. # 179 at 46-47. The Court is not sure whether counsel honestly believed this to be a clear and convincing argument, or whether he was simply hoping to confuse and distract the Court from the fact that the record lacks the necessary evidence of direct involvement by Bland
As mentioned before, Plaintiffs' fourth claim for relief, premised upon the FLSA's wage and hour provisions, alleges that Bland Farms failed to reimburse them within the first workweek, or within a reasonable time thereafter, for expenses Plaintiffs incurred that were "primarily for the benefit of the employer." Doc. # 73 at 56-57. Failure to reimburse these expenses resulted in a de facto wage deduction from Plaintiffs' first week's wages, which took them below a minimum wage specified by the FLSA. Doc. # 170 at 2.
The FLSA requires that employers pay a certain minimum wage, plus any expenses the employee incurs for the benefit of the employer. Arriaga, 305 F.3d at 1233 (11th Cir.2002). These are not two independent requirements; rather, the minimum hourly wage and the expenses are used to calculate a single FLSA lodestar. If an employer pays an hourly wage higher than the FLSA minimum, it may not be required to reimburse the employee for expenses at all (i.e., if the resulting pay [actual wage x hours worked] is higher than the FLSA lodestar [(minimum wage x hours worked) + expenses]). Certain pre-employment expenses—e.g., travel to
The pre-employment expenses which were not reimbursed are not in dispute; these expenses include:
Doc. # 179 at 17. Before continuing, the Court notes that it limits its analysis to the first category of expenses—the visa processing and recruiting fees charged by MOA and CSI. Defendants' motion for summary judgment must be denied as to the remaining three categories of expenses because Defendants' argument as to those particular expenses is based on the contention that the expenses "are more than offset by the $50 credit Bland Defendants are due for housing provided to the Plaintiffs, such that the FLSA lodestar formula approved by this Court ... would result in no liability under the FLSA." Doc. # 170 at 7. The Court cannot address that contention, however, in light of the Court's decision to strike Defendants' expert witness opinion. See supra section III.1. Thus, the Court is without an expert opinion on the fair rental value of the housing afforded to Plaintiffs while employed by Bland Farms and is unable to complete the FLSA lodestar computation. As a result, summary judgment is denied as to expenses (2), (3), and (4). Doc. # 169.
Proceeding to the processing and recruiting fees collected by MOA and CSI, Defendants contend that these companies had neither apparent nor actual authority from Bland Farms to charge the fees in question. Doc. # 170 at 7. "In a case involving a federal statute that is silent as to the applicability of agency law, the Supreme Court has stated that the `apparent authority theory has long been the settled rule in the federal system.'" Arriaga, 305 F.3d at 1244-45 (citing Am. Soc'y of Mech. Eng'rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982)). The Arriaga Court declared that "[n]othing in the FLSA seeks to displace the principles of agency law" and considered the plaintiffs' apparent authority argument. Id. at 1245 n. 24. "[A]pparent authority is `created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.'"
Here, as was the case in Arriaga, there is no evidence that Defendants authorized
From the inception of Bland Farms and ILMC's relationship, Defendants made clear to ILMC that Bland Farms had its own list of recruited workers totaling around 800 names and had a limited need for ILMC's recruitment services. See doc. # 167 at 4-5 (Sarah Farrell's affidavit). Sloan Lott and Clarke Yearous, both employees of Bland Farms, sought and received assurances that ILMC and its subcontractors would not charge any processing or recruitment fees to the Bland workers. Doc. ## 169-4 at 4 (Sloan Lott's affidavit); 169-9 at 1-2 (Clarke Yearous' affidavit).
Bland Farms' contractual negotiations with ILMC further buttress a finding that Bland Farms did not authorize ILMC, MOA, or CSI to charge processing and recruiting fees. ILMC's standard form "Agency and Indemnity Agreement," a copy of which has been provided by Defendants, reads as follows:
Doc. # 169-5 at 24 (Exhibit one to Therese Bouwense's affidavit). The revised agreement that was actually executed by the parties, however, removed any reference to recruitment in Mexico:
Id. at 27 (Exhibit two to Therese Bouwense's affidavit). It is thus clear to this Court that ILMC, MOA, and CSI lacked apparent authority to collect recruiting and processing fees from Plaintiffs and other H-2A workers. Plaintiffs, however, contend that Bland Farms was vicariously liable for MOA and CSFs collection of recruiting and processing fees by reason of the "aided in the agency relation rule:"
Doc. # 179 at 31.
The "aided by the agency relation rule" permits a party to impose vicarious
Assuming, arguendo, that Bland Farms did delegate authority to the collect processing and recruiting fees, the "aided by the agency relation rule" still requires something more than an agency relationship itself. See id. at 760, 118 S.Ct. 2257. In Burlington, that missing element was a "tangible employment action," which the Supreme Court defined as a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. at 761, 118 S.Ct. 2257. "In that circumstance, vicarious liability is absolute, without regard to whether the employer knew, or should have known, or approved of the act, or sought to prevent or stop it." Nye v. Roberts, 145 Fed.Appx. 1, 4-5 (4th Cir.2005). Here, contrary to what Plaintiffs' counsel may say, MOA and CSI did not take "tangible employment action" against Plaintiffs because the collection of recruiting and processing fees did not cause a significant change in employment status. Because there was no "tangible employment action," the "aided by the agency relation rule" simply does not work in this case.
Bland Farms did not authorize anyone to collect recruiting or processing fees from H-2A workers in Mexico. Defendants' motion for summary judgment is thus granted as to the processing/recruiting fees collected by MOA and CSI in Plaintiffs' fourth claim for relief. Doc. # 169.
Finally, Defendants have moved for summary judgment on Plaintiffs' allegations that Defendants "jointly and severally employed" the Plaintiffs with ILMC, CSI, MOA, and Michael Bell. See, e.g., doc. # 73 at 2, 4, 10 (Third Amended Complaint). If a joint employment relationship exists, all employers involved can be held liable for violating the FLSA's wage and hour laws. A determination of employment status under the FLSA is a question of law to be decided by this Court. See Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996). The Antenor Court's discussion on FLSA employment is instructive on this issue:
Id. (citations omitted). To determine whether a joint employment relationship exists, the Eleventh Circuit recognizes at least eight factors:
(2) the degree of the alleged employer's supervision, direct or indirect, of the farmworkers' work;
(3) the alleged employer's right, directly or indirectly, to hire, fire, or modify the farmworkers' employment conditions;
(4) the alleged employer's power to determine the workers' pay rates or methods of payment;
(5) the alleged employer's preparation of payroll and payment of the workers' wages;
(6) the alleged employer's ownership of the facilities where the work occurred;
(7) the farmworkers' performance of a line-job integral to the harvesting and production of salable vegetables; and
(8) the alleged employer's relative investment in equipment and facilities.
Id. at 932 (citing Aimable v. Long & Scott Farms, Inc., 20 F.3d 434, 440-45 (11th Cir.1994)). Here, the factors described by the Eleventh Circuit in Aimable all weigh in favor of Bland Farms. There is no evidence that the purported joint employers exercised any degree of supervision over Plaintiffs in the performance of their work at Bland Farms. There is no evidence that ILMC, MOA, or CSI had the right to hire, fire, or modify the Plaintiffs' employment conditions while at Bland Farms. There is likewise no evidence that the purported joint employers ever paid Plaintiffs for their work for Bland Farms. Finally, there is no evidence that ILMC, MOA, or CSI ever owned any of the facilities where Plaintiffs performed work for Defendants or ever invested in facilities where Plaintiffs worked.
Plaintiffs' contention that Bland Farms did not have exclusive control over the daily employment activities of the five Plaintiffs for the first workweek of employment with Bland Farms is unconvincing. Doc. # 179 at 55-59. Any evidence that ILMC, MOA, or CSI shared in the right to modify employment conditions for the first workweek arose during the period of time prior to Plaintiffs' commencement of employment with Defendants.
The Court thus finds that Bland Farms was the sole employer of Plaintiffs in this case and grants Defendants' motion for summary judgment on this issue. Doc. # 169.
As noted earlier, Plaintiffs' third claim for relief is a breach of contract claim, wherein they allege that Defendants violated the terms of the clearance order, which promised, inter alia, compliance with all employment-related law and reimbursement for all inbound transportation expenses and payment of wages on a weekly basis. Doc. # 73 at 55-56. Because this claim is fundamentally the state law equivalent of Plaintiffs' fourth claim for relief (which was partially addressed above, in section IV.C), the Court denies Defendants' motion for summary judgment on this claim. Doc. # 169. The Court's resolution of Plaintiffs' FLSA claim at trial will inevitably address many of the issues intertwined with this contractual claim. At this time, the Court expresses no opinion on whether Plaintiffs can actually recover expenses deemed to have been primarily for the benefit of the employer via a common law contracts claim.
The Court, however, declines Defendants' invitation to reconsider this
Plaintiffs' motion to strike is
Defendants' motion for summary judgment is likewise
Moving forward, this case is limited solely to the issue of whether Defendants violated the FLSA and the terms of the clearance order by failing to reimburse Plaintiffs for expenses, aside from the recruiting and processing fees, that were allegedly incurred primarily for the benefit of Bland Farms. Counsel should limit any future discovery to this issue alone.
Before the Court is Plaintiffs' motion to reconsider the Court's 3/12/10 Order, doc. # 229, which, inter alia, granted in part Defendants' motion for summary judgment. Doc. # 230. "Reconsideration
In their motion for reconsideration, Plaintiffs argue that the Court ignored their "evidence and argument that Bland Defendants are liable under the FLSA for the knowledge acquired by ILMC and its authorized agents in Mexico because ILMC and those agents were acting within the scope of their employment by the Bland defendants as their actual agents." Doc. # 230 at 1 (emphasis added). Plaintiffs thus contend that the Court erred by not addressing the issue of whether International Labor Management Corporation ("ILMC"), Manpower of the Americas ("MOA"), and Consular Services International ("CSI") had actual authority from Bland Farms to collect recruiting and processing fees from H-2A workers in Mexico. "[A]ctual authority can only be created by written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him to act on the principal's account." Cont'l Cas. Co. v. Holmes, 266 F.2d 269, 278 (5th Cir.1959)
Although the Court admittedly did not expressly conclude that ILMC, MOA, and CSI lacked actual authority from Bland Farms to collect recruiting and processing fees, the 3/12/10 Order still noted that Bland Farms never assented to such action. See e.g., doc. # 229 at 12 ("[T]here is no evidence that Defendants authorized ILMC, MOA, or CSI to collect processing
Finally, Plaintiffs suggest that ILMC, as Bland Farms' agent, knew that MOA and CSI were collecting recruiting and processing fees, and that knowledge is imputed to Bland Farms under common law principles of agency. Doc. ## 230 at 1-3, 237 at 3-7; see Am. Standard Credit, Inc. v. Nat'l Cement Co., 643 F.2d 248 (5th Cir.1981). In American Standard Credit, the court addressed the question of whether knowledge acquired by a corporation's agent is imputed to the corporation to determine whether the corporation was a "buyer in the ordinary course" under the Uniform Commercial Code. 643 F.2d at 270-71. The Court held that "[t]he only way to communicate actual notice to a corporation is through its agents. Thus, a corporation is held responsible for the knowledge acquired by its agents while acting within the scope of their employment." Id. at 270 (quoting Birmingham Boys' Club, Inc. v. Transamerica Ins. Co., 295 Ala. 177, 325 So.2d 167, 169 (Ala. 1976)).
The rule described in American Standard Credit is inapplicable here for two reasons. First, as noted earlier, ILMC, MOA, and CSI were not authorized by Bland Farms to collect recruiting and processing fees, so they were not acting within the scope of their employment when they did collect those fees. Second, Plaintiffs presented no evidence that ILMC learned of the collection of fees while serving as Bland Farms' recruiting agent.
For the foregoing reasons, Plaintiffs' motion for reconsideration is
