The opinion of the court was delivered by: Baker, Chief Judge.
This is an action brought by a group of migrant farm workers
against the owners of a Kankakee County, Illinois, farm where
those workers performed seasonal agricultural work from 1983
to 1988. The complaint is in four counts. Count One seeks
relief under the Migrant And Seasonal Agricultural Worker
Protection Act, 29 U.S.C. § 1801-1872 (1985 & Supp. 1991)
("AWPA"). Count Two is a pendent state claim under the Illinois
Wage Payment And Collection Act, Ill.Rev.Stat. ch. 48, pars.
39m-1-39m-15 (1986 & Supp. 1990) ("IWPCA"). Count Three alleges
violations of the Federal Insurance Contributions Act,
26 U.S.C. § 3101-3128 (1989 & Supp. 1991) ("FICA"). Finally,
Count Four seeks relief under the Fair Labor Standards Act,
29 U.S.C. § 201-219 (1978 & Supp. 1991) ("FLSA"). Counts I, II,
and III are class actions, while Count IV is brought by the
individually named plaintiffs.
The plaintiffs claim that the defendants violated their
rights in a variety of ways. Among other things, the
plaintiffs claim that the defendants did not keep adequate
employment records, did not provide adequate housing for the
plaintiffs, did not comply with both federal and state law in
withholding certain portions of their hourly paychecks, failed
to acquire required insurance coverage on farm equipment, and
failed to provide them with required information concerning
the terms of their employment. The plaintiffs have moved for
partial summary judgment on two of the four counts and for
summary judgment on the remaining two counts of their
complaint. The defendants have submitted a late response to
the plaintiffs' motions, in addition to asserting several
This count alleges violations of the AWPA. Specifically, the
plaintiffs claim that the defendants failed to maintain pay
records as required by the statute and violated the posting
and transportation requirements of the statute. The defendants
have responded to these allegations and have asserted that
their status as a family farm exempts them from compliance
with the statute.
Dealing first with the defendants' affirmative defense, the
AWPA exempts family owned and operated farms from its
requirements. Such an exemption belongs to
[a]ny individual who engages in a farm labor
contracting activity on behalf of a farm . . .
which is owned or operated exclusively by such
individual or an immediate family member of such
individual, if such activities are performed only
for such operation and exclusively by such
individual or an immediate family member . . .
29 U.S.C. § 1803(a)(1). "Farm labor contracting activity" is
defined as "recruiting, soliciting, hiring, employing,
furnishing, or transporting any migrant or seasonal
agricultural worker." Id. at § 1802(6). Although few cases have
construed this provision, the Sixth Circuit has held that where
the evidence demonstrates that a non-family member performed
any farm labor contracting activity, the exemption does not
apply. Bueno v. Mattner, 829 F.2d 1380, 1383-84 (6th Cir.
1987); cf. Alvarez v. Joan of Arc, Inc., 658 F.2d 1217, 1221
(7th Cir. 1981) (under AWPA's predecessor statute, proof that
defendant occasionally solicited workers for non-family farm
The defendants claim that they fall under this exemption.
They argue that the evidence indicates that their farm is
owned and operated by family members for the exclusive benefit
of the family. They also claim that the evidence indicates
that any "farm labor contracting activity" on the farm was
performed exclusively by the Witvoets. Thus, the defendants
argue that they are exempt from the AWPA's provisions, and
they seek a judgment from the court saying so.
The plaintiffs disagree. They claim that the evidence
indicates that non-family members regularly drove the
plaintiffs to work and that this transportation constituted
"farm labor contracting activity" within the meaning of the
statute. Thus, the plaintiffs argue that they are entitled to
a judgment that the exemption does not apply to this case.
Failing that, the plaintiffs claim that they have at least
proven that there is a factual dispute over whether non-family
members engaged in "farm labor contracting activities," which
precludes the court from entering judgment for the defendants
on the issue of the family farm exemption.
The plaintiffs have the better argument. There is a sharp
dispute concerning whether the Witvoets delegated authority to
non-family members to hire workers. For example, two of the
plaintiffs claim that they first spoke with, and were hired
by, non-family members, not the Witvoets. One plaintiff stated
that he never spoke with the Witvoets about his hiring,
speaking with Jim Witvoet, Jr., for the first time only when
there was a problem with his rent. Although the Witvoets may
have retained veto power over the workers chosen by the
non-family member foremen, that does not translate into a
finding that they retained exclusive control over the hiring
of workers. See Marshall v. Buntings' Nurseries, 459 F. Supp. 92,
97 (D.Md. 1978).*fn1 The Witvoets' assertion that no one
solicited the workers seems improbable; surely someone gave
them permission to appear for work on the farm. The evidence
does not allow the court to make a finding that the Witvoets
exclusively performed that function.
The plaintiffs, however, claim even more. They argue that
the evidence indicates that they are entitled as a matter of
law to a judgment that the family farm exemption
cannot apply to the defendants. In support, they note that one
of the "farm labor contracting activit[ies]" referred to in the
statute is the "transporting [of] any migrant or seasonal
agricultural worker." 29 U.S.C. § 1802(6). Because the
undisputed evidence demonstrates that non-family members at
least occasionally drove the workers from their houses to the
fields, the plaintiffs claim that the family farm exemption
cannot apply to the Witvoets. The defendants respond that such
an interpretation would destroy the statutory exemption. They
argue that anytime a worker shared a ride to the fields with a
worker who was not a family member, the exemption would be
inapplicable because such car pooling would technically
constitute "transporting" of an agricultural worker by a
The law and the evidence are on the plaintiffs' side. The
Witvoets themselves identified two non-family members who
transported workers to the fields in 1987 and 1988, and they
indicated that, while they could not remember the drivers'
names, that job was performed by non-family members in earlier
years as well. Because "the activity of transporting . . .
includes such transportation of workers to and from the
fields, between fields, and into neighboring towns,"
Buntings' Nurseries, 459 F. Supp. at 97, the plaintiffs seem to
be entitled to a judgment that the family farm exemption has no
application here. The Witvoets' fear that an overly broad
reading of "transporting" would destroy the exemption may have
validity in certain factual settings. The facts here, however,
demonstrate that the "transporting" at issue was more than
workers merely sharing rides to the fields; it was the
exclusive method employed by the defendants to get their
workers to and from their farm.
Turning now to the substantive AWPA claims, the plaintiffs
are again on solid ground. As noted earlier, the Witvoets have
made a late response to the specific charges made by the
plaintiffs, though they place primary reliance on their claim
that the family farm exemption obviates the need for them to
follow the statute's requirements.
As for the plaintiffs' claim that the defendants failed to
maintain pay records as mandated by the statute, the evidence
appears undisputed that the requirements of the AWPA were not
met. 29 U.S.C. § 1821(d)(1) and 29 C.F.R. § 500.80(a) dictate
that an agricultural employer must keep records for each worker
which state (1) the basis on which wages were paid to that
worker, (2) the number of hours worked, (3) the total pay
period earnings, (4) specific sums of money withheld and the
purpose of such withholdings, (5) the net pay, and (6) the name
and permanent address of each worker. In each of the years
involved in this lawsuit, the evidence indicates that the
defendants failed to comply with one or more of these
requirements. Specifically, the evidence is as follows:
1983 — The defendants admit that no pay records at
all were kept by the defendants.
1984 — The defendants admit that their records did
not contain the workers' names and addresses, the
hours worked, or the basis on which wages were
1985 — The evidence shows that the defendants'
records did not contain the workers' addresses, the
hours worked, the basis on which wages were paid,
or the sums withheld from pay and the reason for
1986 — The evidence shows that the defendants'
records did not contain the workers' addresses or