following: (1) that wage rates are not less than the rate
"prevailing" in the area of employment, (2) that housing provided
by the employer meets the sanitation standards of
20 C.F.R. § 620, (3) that transportation arrangements
from the workers' homes
to the employer are no less favorable than those in the area of
employment, and (4) that all other terms and conditions of
employment meet the "prevailing" test.
Del Monte submitted four clearance orders to the Illinois State
Employment Service (ISES) prior to the 1973 harvest season. ISES
and the regional DOL office approved these orders and transmitted
them to labor supply state employment service offices for the
recruitment of workers.
Plaintiffs contend that the relevant terms and conditions of
employment contained in these orders were: (1) job positions as
packing plant workers or tractor drivers; (2) workers "will be
expected to work up to 15 hours per day or 70 hours or more per
week. Average hours worked on a seasonal basis is 50 to 55 hours
per week. Crop, weather conditions and/or labor supply available
may alter this average and result in fewer or more hours per
week." (3) "Deductions for all advances will not be in excess of
those permitted under the Fair Labor Standards Act and other
Plaintiffs were recruited pursuant to these clearance orders in
employment service offices in Kentucky, Arkansas and Texas.
Plaintiffs Hemphill, Hooks, Jones and Thorbes claim by way of
affidavit they were specifically offered tractor driver jobs
under clearance order V-Ill-12. The other plaintiffs allegedly
were offered in-plant work. Supposedly all plaintiffs were told
at the time of recruitment by either employment service personnel
or other agents of defendant that work would begin immediately
upon plaintiffs' arrival at defendant's plants in Illinois.
Defendant advanced to plaintiffs the cost of transportation to
Illinois. Plaintiffs left their homes and traveled to defendant's
Upon arriving at defendant's plants, plaintiffs found little or
no work. Plaintiffs Martinez, Ramirez and Fernandez received no
work. Plaintiffs Hemphill, Hooks, Jones and Thorbes were never
given the probation period as tractor drivers. Instead, they
claim they received infrequent employment as in-plant workers, a
lower-paying position, or no work at all. The other plaintiffs
found themselves in the same position. Those plaintiffs who did
receive work had large deductions taken from their paychecks to
satisfy their debts. The deductions left many of the plaintiffs
with small or negative paychecks. Part of the plaintiffs' claim
is that these deductions were made without plaintiffs' executing
valid wage assignments or being subject to wage deduction orders.
They argue that this system, by forcing plaintiffs into debt, and
then requiring plaintiffs to work off the debt before plaintiffs
could leave defendant's employ, constitutes peonage (Count III).
And that defendant used this system to maintain a reserve labor
pool for peak work periods.
As to the wages paid, plaintiffs contend that they were often
below the federal minimum wage. Thus, defendant allegedly
violated the Fair Labor Standards Act (Count V).
Plaintiffs originally filed suit in July of 1973 seeking
emergency injunctive relief against Del Monte, the Illinois
Department of Labor, and the United States Department of Labor,
and their respective administrative heads. After extensive
hearings on July 25, 27 and 30 of 1973 on plaintiffs request for
a temporary restraining order, Judge McMillen refused to enter
such an order, but urged the parties to reach agreement on future
recruitment activities under the approved clearance orders. On
August 13, 1973, the plaintiffs and all defendants filed a
detailed stipulation representing the satisfactory resolution of
the matters with respect to which the plaintiffs had sought
There remained plaintiffs' request for declaratory and monetary
On August 21, 1973 defendant Del Monte filed its motion to
dismiss the complaint for equitable, declaratory, monetary and
other relief, pursuant to Rule 12(b) of the Federal Rules of
Civil Procedure on the grounds that the Court lacked subject
matter jurisdiction and that the complaint failed to set forth a
claim upon which relief could be granted. This motion was fully
briefed by the parties pursuant to Local Rule 13. On December 17,
1973, the Illinois Department of Labor and United States
Department of Labor, and their respective administrative heads,
were dismissed from the lawsuit by virtue of stipulations entered
with the plaintiffs whereby those defendants agreed to process
interstate clearance orders in a specified manner (see U.S.
Department of Labor letter of November 30, 1973 and Illinois
Department of Labor Stipulation of December 17, 1973).
On December 27, 1973, this Court granted defendant Del Monte's
motion to dismiss. Thereafter plaintiffs filed an amended
complaint on January 24, 1974.
I. PLAINTIFFS HAVE STATED A PROPER CAUSE OF ACTION UNDER THE
Plaintiffs seek to enforce their rights under the Wagner-Peyser
Act of 1933*fn2 and the regulations promulgated by the Secretary
of Labor pursuant to the Act.*fn3
Surprisingly, in the 41 years since enactment of the statute
there has been but a handful of cases in which the Wagner-Peyser
Act was the jurisdictional basis. Plaintiffs contend that the Act
authorizes an implied federal cause of action by private parties.
In support they cite Gomez v. Florida State Employment Service,
417 F.2d 569 (5th Cir. 1969) which also involved a claim by
migrant workers who sought relief when they were deprived of
adequate wages, facilities, and working conditions.
As Chief Judge Brown pointed out in Gomez (supra), the
"implication of a private civil remedy was first recognized by
the Supreme Court in 1916 in Texas & Pacific Ry. Co. v. Rigsby,
241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874." In Rigsby, the Supreme
"[D]isregard of the command of the statute is a
wrongful act, and where it results in damage to one
of the class for whose special benefit the statute
was enacted, the right to recover the damages from
the party in default is implied. . . ."
This interpretation has been applied to many regulatory statutes
and has been invoked quite often in the federal courts. See,
Note, Implying Civil Remedies from Federal Regulatory Statutes,
77 Harv.L.Rev. 285 (1963) and footnote #1 in Farmland Indus. Inc.
v. Kansas-Nebraska Nat. Gas Co. Inc., 349 F. Supp. 670 (D.C.Neb.
1972) at 678 (Natural Gas Act); Dovis v. Romney, 355 F. Supp. 29
(E.D.Pa. 1973) (jurisdiction under National Housing Act as to
rights but not money damages); Cook v. Ochsner Foundation
Hospital, 319 F. Supp. 603 (E.D.La. 1970) (construing the
Hill-Burton Act); New York City Coalition for Community Health v.
Lindsay, 362 F. Supp. 434 (1973) (Public Health Service Act);
Yanez v. Jones, 361 F. Supp. 701 (D.C.Utah 1973) (Social Security
Act). What is clear from these cases is that on more than one
occasion federal courts have stated that a civil remedy may be
implied from statutes on regulations which make no mention of a
right to bring suit. And, that, when it can be fairly stated that
Congress intended to benefit a particular class in its statutory
scheme, a civil remedy will be implied for such beneficiaries.