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January 15, 1981


The opinion of the court was delivered by: Moran, District Judge.


The plaintiffs in this action are migrant farmworkers recruited for employment by Stokely-Van Camp in Illinois under the Interstate Recruitment System, a program linking unemployed workers with jobs. The plaintiffs allege that their employment was terminated prematurely and they were required to pay their own way back to Texas in violation of the terms set out by Stokely. They also allege that they neither worked an average 48 hour work week nor did they always receive the specified 20 hours/week work guarantee promised by Stokely.

As a result of these alleged violations, plaintiffs brought suit under the Wagner-Peyser Act, 29 U.S.C. § 49 et seq. and breach of their employment agreements with Stokely. The Texas Employment Commission, the Illinois Department of Labor and the U.S. Department of Labor were sued for their alleged failure to properly supervise and administer the program. Monetary relief was sought against Stokely-Van Camp. In June, 1977, the plaintiffs settled their claims against Stokely who agreed to pay $8000 to class members. The plaintiffs resolved their dispute with the Texas Employment Commission by a consent decree in March, 1978 and settled with the Illinois defendants in June, 1979. None of the parties admitted liability as part of its settlement.

The claims against the federal defendants remain and cross motions for summary judgment are pending. For the reasons stated below, both motions are denied.

Plaintiffs have launched a broad gauged attack on federal administration of the system in Illinois. They seek to impose an affirmative duty upon the federal government to investigate the accuracy of clearance orders and to provide an effective complaint procedure. The defendants raise an initial standing issue, arguing that these plaintiffs cannot imply a private right of action under the Wagner-Peyser Act for injunctive relief against the federal defendants. Various courts have implied a private right of action on behalf of migrant workers after a review of the act and implementing regulations. See e.g. Gomez v. Florida State Employment Service, 417 F.2d 569 (5th Cir. 1969); Jenkins v. S & A Chaissan & Sons, Inc., 449 F. Supp. 216 (S.D.N.Y. 1978); (decided after the 1977 regulations went into effect), Galindo v. Del Monte Corp., 382 F. Supp. 464 (N.D.Ill. 1974). This court agrees with the rationale of those decisions.

Defendants go on to dispute the scope of the duty contended by plaintiffs and to urge that 1977 changes in the regulations moot the claims raised by plaintiffs in their complaint both because those changes narrowed the scope of any duty and because they resolved plaintiffs' concerns. This court agrees in part, but only in part, with defendants' position. A brief review of the circumstances giving rise to the complaint and the regulatory setting would here be helpful in explaining the court's decision.

Stokely-Van Camp, the employer, filed a clearance order detailing the terms and conditions of employment for the plaintiff with the Texas State employment service. That agency referred migrant farmworkers to Illinois, where the Illinois Employment Service processed them. The Wagner-Peyser Act and implementing regulations, 20 C.F.R. § 601 et seq. (prior to Feb. 1977) and 20 C.F.R. § 651 et seq. (after Feb. 1977) provided guidelines within which those agencies were to act. The federal defendants, who set those guidelines, acted as coordinators of the program.

The duty owed by the federal defendants is set forth in the Wagner-Peyser Act. Under that statute, the federal defendants are to "assist in coordination of public employment offices . . . by maintaining a system for clearing labor between the several states." 29 U.S.C. § 49b(a). They are responsible for "developing and prescribing minimum standards of efficiency" in public employment offices. Id. The federal defendants have a "duty . . . to ascertain whether the system of public employment offices maintained in each state is conducted in accordance with the rules and regulations and the standards of efficiency prescribed by the Secretary in accordance with the provisions of said sections." 29 U.S.C. § 49b.

The regulations detail the obligations of the federal and state agencies. They set forth both federal policies and standards the state must follow in administering the Interstate Recruitment program. The 1976 regulations specify that orders should not be placed in interstate commerce unless the state agency has determined that local workers are not available, that they are needed, that prevailing wages are offered, that transportation is provided, that housing is adequate and that other terms are not less favorable than those prevailing in the area. 20 C.F.R. § 602.8 and 602.9. The regulations establish that federal policy is "to recruit no workers for employment if the wages, hours or other conditions of work offered are substantially less favorable to the individual than those prevailing for similar work in the locality." 20 C.F.R. § 604.1(k).*fn1

The Department, in an attempt to comply with a court order in NAACP v. Brennan, 360 F. Supp. 1006 (D.D.C. 1973), established Department guidelines which included a system of monitoring and field reviews which state agencies were to follow. An extensive complaint procedure was established which provided a forum for resolution of disputes first with the local employment service, then the state employment service and ultimately the Department of Labor if the complaint had not been resolved earlier. Rules embodying these matters were first integrated into the regulations in 1977.

The Secretary's "duty" must be analyzed at two points in the process. The first is when the employer seeks to use the Interstate Recruitment system; the second, after the employer has allegedly used the system improperly.

In the instant situation, Stokely-Van Camp's clearance order V-III-8 was presented and approved by the state agencies. In that order, Stokely described the conditions of employment which included the crop, nature of the work, the wage rate, anticipated hours, housing, numbers of workers required, transportation arrangements and scheduled dates of employment. It is uncontroverted that the federal defendants examined the order. They determined that the order "satisfied the requirements of the United States Employment Service for interstate clearance and authorized their transmittal to Texas" (Answer, ¶ 1.(g)), and it is not contended that the order on its face disclosed any violation of federal requirements.

The defendant argues that they owed the plaintiffs no more; the plaintiffs maintain that their refusal to do more failed to protect them from the employer's alleged abuses which amounted to misrepresentations of material terms and conditions.

The statute and regulations clearly establish the federal defendants' supervisory role. Those defendants urge that the 1977 changes in regulations narrowed the scope of their duties by specifying that they are not guarantors of the accuracy or truthfulness of the information contained in job orders. But that previously was true. The representations in the clearance order are those of the employer which the federal defendants, in their supervisory role, are entitled to rely upon if they facially conform to federal requirements. ...

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