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CALDERON v. WITVOET

May 10, 1991

CRISPIN CALDERON, ET AL., PLAINTIFFS,
v.
JIM WITVOET, SR., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Baker, Chief Judge.

  ORDER

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 affirmative defenses.

Count One

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 destroys exemption).

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 fellow 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 non-family member.

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
  paid.
  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
  such withholding.
  1986 — The evidence shows that the defendants'
  records did not contain the workers' addresses or
  the ...

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