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ADKINS v. MID-AMERICAN GROWERS

April 29, 1997

HAROLD ADKINS, on behalf of all other plaintiffs similarly situated, known and unknown, Plaintiffs,
v.
MID-AMERICAN GROWERS, INC., a corporation, Defendant.



The opinion of the court was delivered by: COAR

 This opinion follows a five-week bench trial in which decision was reserved pending written opinion. This is the written opinion addressing the merits of the case.

 I. THEORIES OF THE CASE

 Plaintiffs respond that they are entitled to "time and a half" compensation for overtime worked at defendant's greenhouse operation under the Fair Labor Standards Act ("FLSA"). During the two-year time period immediately preceding this lawsuit, plaintiffs received straight wages for overtime hours worked. *fn1" Defendant claims that it is entitled to an "agricultural" exemption from the overtime requirements contained in the FLSA.

 Plaintiffs argue that, because some of the work that they performed during various workweeks was "non-exempt" within the meaning of the statute, defendant may not avail itself of the agricultural exemption. Plaintiffs further maintain that, because defendant's use of the exemption is an affirmative defense, it is defendant's burden to prove that no non-exempt work was performed by plaintiffs during the weeks in which they worked overtime and were compensated with straight wages.

 There are three categories of work performed by plaintiffs which plaintiffs allege are nonexempt:

 
1. Work performed on plants obtained by defendant from independent growers.
 
2. Work performed relating to "hard goods" such as pots, soil, and the like.
 
3. Work performed at the residence of Nick Van Wingerden ("Van Wingerden"), President of Mid-American Growers ("defendant" or "MAG"), such as lawnmowing, gardening, etc.

 As is plain from this recitation, plaintiffs focus on the product upon which they worked, as opposed to the type of work they performed. Defendant, on the other hand, argues that virtually all the types of work performed by plaintiffs fit into either the "primary" or "secondary" definitions of agriculture contained in the FLSA regardless of the product upon which the work is performed. Moreover, defendant submits that even if some of the work in question were non-exempt within the meaning of the statute, such work is of an insignificant amount and should be disregarded under the de minimis doctrine.

 II. LEGAL STANDARD

 A. "Agricultural Exemption"

 Congress enacted the FLSA as a means of regulating minimum wages, maximum working hours, and child labor in industries that affect interstate commerce. 29 U.S.C. § 202; 81 Cong. Rec. 7648 (1937). For example, with respect to, maximum hours, Congress provided that

 
. . . no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed . . . .

 29 U.S.C. § 207.

 In addition to such regulations, Congress established several exemptions to the FLSA maximum hour or "overtime" provisions. These exemptions are to be construed narrowly by interpreting courts. In a case similar to the one at bar, an employer sought to avail itself of an overtime exemption for "retail and service establishments" under the FLSA. Arnold v. Ben Kanowsky, 361 U.S. 388, 392, 80 S. Ct. 453, 456, 4 L. Ed. 2d 393 (1960). However, the Supreme Court stated that "these exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit." Arnold, 361 U.S. at 392, 80 S. Ct. at 456; see also Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295, 79 S. Ct. 756, 759, 3 L. Ed. 2d 815 (1959) ("It is well settled that exemptions from the Fair Labor Standards Act are to be narrowly construed."); A.H. Phillips v. Walling, 324 U.S. 490, 493, 65 S. Ct. 807, 808, 89 L. Ed. 1095 (1945) (any exemption under the FLSA must be narrowly construed). The Seventh Circuit relied on this language in Klein v. Rush-Presbyterian-St. Luke's Medical Center, 990 F.2d 279, 282 (7th Cir. 1993), a case dealing with the exemption of "executives" from overtime requirements under FLSA. See 29 U.S.C. § 213(a)(1).

 Indeed,

 
the Fair Labor Standards Act was designed 'to extend the frontiers of social progress' by 'insuring to all our able-bodied working men and women a fair day's pay for a fair day's work.' . . . Any exemption from such humanitarian and remedial legislation must therefore be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress.

 A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 492, 65 S. Ct. 807, 808, 89 L. Ed. 1095 (1945) (citations omitted).

 The exemption at issue in the instant case is set forth in section 213(b)(12) of the FLSA. Section 213(b)12 exempts from the overtime requirements "any employee employed in agriculture." 29 U.S.C. § 213(b)(12). Like all such exemptions, the agriculture exemption should be narrowly construed. Damutz v. William Pinchbeck, 158 F.2d 882, 883 (2d Cir.1946).

 Notwithstanding the narrow construction of the exemption, the definition of agriculture embodied in the exemption is intentionally extremely comprehensive and entitled to broad construction. See, e.g., Reich v. Tiller Helicopter Svcs., Inc., 8 F.3d 1018, 1024 and n. 4-5 (5th Cir.1993). Section 203(f) defines agriculture as follows:

 
'Agriculture' includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities . . ., the raising of livestock . . . and any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market, or to carriers for transportation to market.

 29 U.S.C. § 203(f). Thus, while the agriculture exemption is narrowly construed against the employers seeking to assert it on the one hand, such employers benefit from the broad scope of the agriculture definition on the other.

 The Supreme Court first addressed the scope of the agricultural exemption in Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 760-763, 69 S. Ct. 1274, 1277-1278, 93 L. Ed. 1672 (1949). The Court stated that the determinative issue in analyzing the scope of the exemption was not whether the work "is necessary to agricultural production . . . [but whether it] can itself be termed agriculture." Id. at 759-760, 69 S. Ct. at 1277. The Court also concluded that the exemption recognized and applied to two types of agricultural activity: primary and secondary. The Court explained,

 
whether a particular type of activity is agricultural depends, in large measure, upon the way in which that activity is organized in a particular society.... That is, the question is whether the activity in the particular case is carried on as part of the agricultural function or is separately organized as an independent productive activity. . . . As can be readily seen, this definition [of agriculture] has two distinct branches. First, there is the primary meaning. Agriculture includes farming in all its branches. Certain specific practices such as cultivation and tillage of the soil, dairying, etc., are listed as being included in this primary meaning. Second, there is the broader meaning. Agriculture is defined to include things other than farming .... It includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidently to or in conjunction with 'such' farming operations.

 Farmers Reservoir & Irrigation Co., 337 U.S. at 760-763, 69 S. Ct. at 1277-1278. For the broader "secondary" agriculture activity to fall within the scope of the exemption, the Court stated that the activity must meet two distinct criteria: (1) it had to be performed either by a farmer or on a farm and (2) it had to be incidental to or in conjunction with farming operations. Id. at 766 and n. 15, 69 S. Ct. at 1280 and n. 15.

 In Maneja v. Waialua Agricultural Co., 349 U.S. 254, 75 S. Ct. 719, 99 L. Ed. 1040 (1955), the Court again addressed the scope of the agricultural exemption. Waialua Agricultural Co., 349 U.S. at 262-263, 75 S. Ct. at 724-725. Waialua effectively narrowed the second criterion of the test for secondary agricultural activity so that, for secondary agricultural activity to be exempt, it had to be performed by a farmer or on a farm and it had to be incidental to or in conjunction with those of the farmer for whom the relevant activity was performed or the farm on which the relevant activity is performed. Id. In other words, the farming operations referred to in the second criterion must be the farming operations of the farmer for whom it was done or on the farm where it was done.2

 It is undisputed that an employer who claims an exemption under the FLSA has the burden of proving its applicability. E.g., Mitchell v. Kentucky Fin. Co., 359 U.S. 290, 291, 79 S. Ct. 756, 757, 3 L. Ed. 2d 815 (1959); Walling v. General Indus. Co., 330 U.S. 545, 547-48, 67 S. Ct. 883, 884, 91 L. Ed. 1088 (1947). Moreover, the conditions set forth in the language of the FLSA are "explicit prerequisites to exemption." Arnold v. Ben Kanowsky, 361 U.S. 388, 392, 80 S. Ct. 453, 456, 4 L. Ed. 2d 393 (1960); see also Walling, at 547-48, 67 S. Ct. at 884 (respondent had the burden of proving the existence of six conjunctive conditions, if it relied on its defense of exemption). Thus, in order to take advantage of the agricultural exemption, defendant must prove that the work performed by the plaintiffs during any workweek in which plaintiffs worked overtime and were not compensated pursuant to the statutory overtime provision is subject to the exemption. Defendant must therefore establish that such work constituted either secondary or primary agriculture under the FLSA. If defendant should fail to meet its burden, the plaintiffs will prevail. Plaintiffs would then bear the burden of proving damages at a separate proceeding on the issue. *fn3"

 C. Applicability of the " De Minimis " Doctrine

 Defendant contends that even if it should fail to establish that the relevant activity is exempt under the FLSA, the totality of such work is inconsequential under the de minimis doctrine. Plaintiff responds, and this court agrees, ...


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