Farm operation previously ordered to stop misclassifying migrant workers

Copemish employer Darryl Howes, doing business as Darryl Howes Farms, signed a consent judgment under which he agreed to pay $11,253 in back wages to 36 migrant workers to resolve a lawsuit filed by the U.S. Department of Labor. Howes has agreed to implement enhanced record-keeping procedures to ensure the business complies with the record-keeping provisions of the Fair Labor Standards Act.

The consent judgment resolves a federal lawsuit filed by the department alleging minimum wage, record-keeping and housing violations and alleges that Howes unlawfully interfered with the Wage and Hour Division’s investigation. The Wage and Hour Division’s investigation revealed that Darryl Howes Farms misclassified its migrant agricultural workers as independent contractors rather than employees entitled to minimum wage and other protections of the FLSA and the Migrant and Seasonal Agricultural Worker Protection Act. The back wages due must be paid within 10 days of the consent judgment being entered by the court. “This consent judgment sends a clear message to farm operations that denying workers their rightfully earned wages by misclassifying them as independent contractors will not be tolerated, and that wage laws will be enforced,” said Mary O’Rourke, district director for the Wage and Hour Division in Grand Rapids. “The department is committed to protecting the many low-wage migrant workers who deserve the wages they earn.”

In earlier case proceedings, U.S. District Judge Gordon J. Quist issued an opinion and order that upheld the department’s findings of record-keeping and housing violations during the 2011 harvest at Howes’ 60-acre cucumber farm and migrant housing camp. The court ruled previously that Howes provided substandard housing to migrant workers at a housing camp he controlled, in violation of the MSPA. The violations at the housing camp included failures to provide adequate shelter; to prevent insect or pest infestation; to remove standing wastewater; to repair broken screen doors and showers; and to maintain toilets in a sanitary condition. The court ordered Howes to ensure all MSPA housing he owns or controls complies with the MSPA. The court previously held that Howes interfered with the department’s investigation by impeding the department’s confidential interviews with his employees.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

Judge orders Darryl Howes Farms to stop misclassifying migrant workers

A federal judge has ordered Darryl Howes and his business, Darryl Howes Farms, located in Copemish, to stop misclassifying his migrant workers as independent contractors, to comply with the record-keeping provisions of the Fair Labor Standards Act and housing standards of the Migrant and Seasonal Agricultural Worker Protection Act, and to cease interfering with U.S. Department of Labor investigations.

When investigated, Darryl Howes Farms employed approximately 38 workers for the 2011 harvest. The migrant agricultural workers were incorrectly classified as independent contractors rather than employees entitled to minimum wage and other provisions of the FLSA and MSPA.

The opinion and accompanying order, issued by U.S. District Court Judge Gordon J. Quist, upholds the department’s findings of record-keeping and housing violations at Howes’ 60-acre cucumber farm and migrant housing camp during the 2011 harvest. The department filed a complaint in federal court in 2012 alleging minimum wage, record-keeping, and housing violations following investigations conducted by the Wage and Hour Division. The minimum wage violations remain in litigation now that the threshold issue of employment status has been determined.

“The nature of migrant agricultural work makes the migrant farm worker vulnerable to unfair and unsafe labor practices. The misclassification of these workers as independent contractors cheats them of their rightfully earned wages and gives the employer an unfair competitive edge in the marketplace,” said Karen Chaikin, regional administrator of the Wage and Hour Division in the Midwest. “These actions put agricultural employers on notice that the department is committed to protecting the many low-wage and vulnerable migrant workers, who are susceptible to exploitation and unfair treatment.”

The court also found that Howes controlled a housing camp, known as the “Green Camp,” and provided substandard housing to migrant workers, in violation of the MSPA’s housing standards. The violations include failure to provide adequate shelter; prevent insect or pest infestation; remove standing wastewater; repair broken screen doors and showers; and maintain toilets in a sanitary condition. The court has ordered Howes to ensure all MSPA housing he owns or controls complies with the MSPA. 
 
In addition to the labor violations, the court also found that Howes had interfered with the department’s investigation. The complaint mentioned four instances when interviews of agricultural workers had to be terminated because Howes or one of his employees attended the interviews with cameras and refused to leave. The order requires Howes to not interfere with future investigations.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

US Labor Department sues Manistee County-based Grossnickle Farms for alleged wage, safety and health standards violations

The U.S. Department of Labor is taking legal action to protect migrant workers at Grossnickle Farms in Manistee County following an investigation conducted by its Wage and Hour Division. A complaint has been filed in federal court against the farming operation and its two owners, Allen and Corinne Grossnickle, alleging violations of the Migrant and Seasonal Agricultural Worker Protection Act and the Fair Labor Standards Act’s minimum wage and record-keeping provisions.

Wage and Hour Division investigators determined that, since at least May 1, 2012, Grossnickle Farms has failed to maintain its migrant agricultural housing facilities, Camp in the Pines, in accordance with the MSPA. Inspections of the housing facilities disclosed evidence of several safety and health standards violations, including failing to maintain toilets in a sanitary condition and to clean them daily, not providing an adequate supply of hot water for bathing and laundry, failing to ensure all camp shelters provided protection from the elements and that all exterior openings were effectively screened with mesh material. Additionally, floors in the laundry and shower facilities were not constructed of nonslip material, and leaking water caused rotting wood and a slipping hazard.

“Allowing migrant workers to live in unsanitary facilities without sufficient hot water for bathing and laundry signals a lack of regard for the workers and puts their health and safety at risk,” said Mary O’Rourke, district director for the department’s Wage and Hour Office in Grand Rapids. “The department will use every enforcement tool available to ensure compliance with safety and health standards.”

Grossnickle Farms also allegedly violated the FLSA by paying many employees’ wages at rates less than $7.25 per hour. The violations were the result, in part, of defendants misclassifying employees as independent contractors and paying employees on a piece rate basis which, in some workweeks, was less than the minimum wage per hour. Investigators also found that the employers failed to maintain required records of employees’ names, wages and work hours, as required by the FLSA.

Grossnickle Farms is a strawberry, asparagus and cucumber farm. The company utilized 49 migrant and seasonal farm workers during the 2012 cucumber harvest. The migrant agricultural workers were mainly from Texas and Florida. The department’s lawsuit seeks to recover unpaid minimum wages owed to the affected employees and requests the court to permanently enjoin the defendants from violating the FLSA and MSPA in the future.

The Wage and Hour Division enforces the MSPA, which protects migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record keeping. The division also enforces the FLSA, which requires covered employers to pay nonexempt farm workers at least the federal minimum wage for all hours worked.

The misclassification of workers as something other than employees, such as independent contractors, presents a serious problem for affected employees, employers, and to the economy. Misclassified employees are often denied access to critical benefits and protections, such as family and medical leave, overtime, minimum wage and unemployment insurance. Employee misclassification also generates substantial losses to state and federal Treasuries, and to the Social Security and Medicare funds, as well as to state unemployment insurance and workers compensation funds. More information is available on the department’s misclassification Web page at http://www.dol.gov/misclassification.

Under the FLSA, employers must distinguish employees from bona fide independent contractors. An employee, as distinguished from a person who is engaged in a business of his own, is one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business that he serves. For more information, visit http://www.dol.gov/whd/regs/compliance/whdfs13.htm.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

US Department of Labor plans for new blueberry season with continued enforcement initiative

2012 enforcement effort resulted in more than $100,000 in back wages, penalties

The U.S. Department of Labor’s Wage and Hour Division is continuing its multiyear enforcement initiative in New Jersey’s blueberry industry, where it has previously found consistent and widespread labor violations. Blueberries are a significant commodity for New Jersey.
 
The division is committed to ensuring that workers employed in this industry are provided the workplace protections and wages to which they are entitled under federal law. Initiative efforts this year will focus on informing workers of their rights and increasing labor law compliance among blueberry growers, farm labor contractors and other related agricultural operations. 
 
The division's Southern New Jersey District Office conducted 32 investigations of agricultural industry employers during the 2012 blueberry harvest. The division found violations of the Fair Labor Standards Act, the Migrant and Seasonal Agricultural Worker Protection Act and provisions of the Occupational Safety and Health Act related to field sanitation and temporary labor camps. These violations resulted in more than $80,000 in back wages due to more than 850 workers, as well as the assessment of approximately $25,000 in civil money penalties.

The most frequent violations resulted from workers being charged for items, such as meals, snacks, and energy and sports drinks, in amounts well above what the employers—mostly farm labor contractors—paid for them. This reduced the workers’ wages below the wage owed, in violation of the MSPA. Other common violations of the MSPA and OSH Act include failing to disclose employment terms and conditions to workers; failing to maintain required employment and payroll records; failing to register as farm labor contractors; failing to obtain prescribed insurance coverage for transportation vehicles; allowing workers to live in unsafe housing facilities; using unsafe transportation vehicles; and failing to provide adequate field sanitation. FLSA violations resulted in some workers being denied proper overtime pay and one farm’s improper employment of an individual under age 12.

“Farm labor contractors and other agricultural employers cannot pay wages to workers and then take a portion of those wages back through excessive charges for food and drink. This is essentially a kickback scheme that deprives workers of their rightful wages,” said Patrick Reilly, director of the division’s Southern New Jersey District Office, which conducted the investigations and is located in Lawrenceville. “A key focus of our initiative is to educate employers about their legal responsibilities and to promote voluntary compliance with federal labor laws. By working with stakeholders, such as the New Jersey Farm Bureau, we are able to expand the reach of our compliance assistance efforts and help foster a vibrant and compliant local agricultural industry.”

As part of the initiative, investigators will continue to visit fields and packing houses throughout New Jersey during the 2013 harvest season to assess compliance among facility owners, growers, farm labor contractors and other business entities providing services to agricultural operations. Thorough inspections of migrant housing units, transportation vehicles, employer practices and pay records will be conducted to ensure compliance with all applicable agricultural labor standards. When violations are found, the division will pursue corrective action, including litigation and the assessment of civil money penalties, to recover workers’ wages and ensure accountability under the law.
The division will also continue to provide compliance assistance to employers and industry organizations and is reaching out to workers, community organizations and other stakeholders to encourage their participation in promoting industrywide compliance. 
 
The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour. Workers who are not employed in agriculture and not otherwise exempt from overtime compensation are entitled to time and one-half their regular rates of pay for every hour they work beyond 40 per week. The law also requires employers to maintain accurate records of employees’ wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law.

Most agricultural employers, agricultural associations and farm labor contractors are subject to the MSPA, which provides additional protections for migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record keeping. The MSPA also requires farm labor contractors to register with the department. Information on the MSPA is available at http://www.dol.gov/compliance/guide/mspa.htm.

The field sanitation provisions of the OSH Act require covered employers to provide workers with toilets, potable drinking water, and hand-washing facilities at no cost to the workers, and to allow reasonable use of the facilities. In addition, covered employers are required to inform workers of the importance of following certain good hygiene practices to minimize exposure to hazards in the field of heat, communicable diseases, retention of urine and agrichemical residues.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

US Department of Labor investigation uncovers unsafe housing and transportation, wage violations at two South Carolina farms

Farm labor contractor and growers assessed more than $16,000 in civil money penalties

The U.S. Department of Labor’s Wage and Hour Division has uncovered wage violations under the Fair Labor Standards Act and violations of the Migrant and Seasonal Agricultural Worker Protection Act’s wage, housing and transportation standards following investigations at J. Robert Griggs Farms, R.D. King Farms and Jean Fisteac, a farm labor contractor. These employers were growing tobacco harvested for various cigarette brands, including Philip Morris International, Altria, doing business as Philip Morris USA, and R.J. Reynolds.

Investigators found that J. Robert Griggs Farms failed to meet minimum housing, health and safety conditions, as required by the MSPA. Among other violations, housing provided to migrant workers lacked working bathroom facilities and hot water. As a result of the violations, the department has assessed this employer $15,225 in civil money penalties.

The investigations also disclosed that farm labor contractor Fisteac failed to pay employees the required minimum wage when he paid them less than the $7.25 per hour. Fisteac has agreed to pay 33 employees $9,388 in MSPA back wages, and the department has assessed the employer $1,325 in civil money penalties.

R.D. King Farms was assessed a civil money penalty for unsafe transportation of workers, a violation of MSPA. The investigation disclosed that the grower transported migrant workers on public roadways in the open cargo bed of a pickup truck.
 
“This investigation should put agricultural employers on notice that the department is committed to protecting the large number of low-wage, vulnerable agricultural workers susceptible to exploitation and unfair treatment,” said Michelle Garvey, director of the Wage and Hour Division’s Columbia District Office. “These workers, who are away from their families for months at a time, deserve a safe work environment and to be paid every penny they rightfully earn. Imagine trying to feed your family on less than the minimum wage. Employers in this industry need to understand that the department will use every enforcement tool at our disposal to enforce federal labor laws and to ensure an honest day’s work receives an honest day’s pay.”

The employers have agreed to future compliance with MSPA standards and to pay all back wages and civil money penalties owed.

Teams of investigators will continue to visit South Carolina fields and packing houses to assess compliance among facility owners, growers, farm labor contractors and other business entities providing services to these agricultural operations. Thorough inspections of migrant housing units, vehicles, employment practices and pay records are being conducted to ensure compliance with all applicable child and agricultural labor standards.
                  
When violations are found, the division will pursue corrective action, including litigation, liquidated damages and civil money penalties, to recover workers’ wages and ensure accountability under the law.

In addition, the division is conducting outreach to inform agricultural workers of their rights under federal labor laws. It is collaborating with community groups, state agencies, employer and industry organizations, and local officials to provide industrywide compliance assistance with all applicable agricultural labor standards, child labor restrictions, H-2A regulatory requirements and joint employer responsibilities.

Accessible and searchable information on enforcement activities by the department is available at http://ogesdw.dol.gov/search.

Most employees engaged in agriculture are covered by federal law because they produce goods for interstate commerce. Most agricultural employers, agricultural associations and farm labor contractors are subject to the MSPA, which protects migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record keeping. The MSPA also requires farm labor contractors to register with the department. A fact sheet on the MSPA is available at http://www.dol.gov/whd/regs/compliance/whdfs49.pdf.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

Ongoing initiative strengthens labor law compliance in Florida’s agricultural industry

San-Way Farms Inc. and owner Wayne Moss have paid $53,800 in back wages to 391 employees after an investigation by the U.S. Department of Labor's Wage and Hour Division disclosed significant violations of the Migrant and Seasonal Agricultural Worker Protection Act. The department assessed the employer an additional $35,000 in civil money penalties, which have also been paid in full.

San-Way Farms Inc., in Plant City, is an agricultural employer involved in the cultivation of strawberries and other crops, such as tomatoes, peppers and beans. San-Way Farms employs migrant and seasonal workers to perform activities related to planting and harvesting these crops. The employer has been the subject of a previous Wage and Hour Division investigation, which disclosed similar MSPA violations.

"These vulnerable migrant farm workers performed intense physical labor, planting and harvesting crops, but in turn were denied their rightful wages and many even suffered unsafe housing conditions," said James Schmidt, director of the Wage and Hour Division's Tampa District Office. "The safety and well-being of farm workers is a top priority for the department. We are pleased these workers will finally be paid the wages they are owed, and we expect that this time San-Way Farms will stay true to its commitment to maintaining future compliance with the law."

A team of investigators from the division's Tampa District Office visited the farming operation and conducted thorough inspections of migrant housing units and vehicles, reviewed payroll records, employment practices, and conducted employee interviews in English and Spanish to assess compliance with all applicable agricultural labor standards.
 
Investigators found many San-Way Farms employees, such as those hired to hand-harvest strawberries, were paid piece-rate wages varying from $1.75 to $3 per flat, or container, of picked crops. The employer failed to keep daily and weekly time records when employees were paid on a piece-rate basis; these employees were not paid for all hours worked, causing some employees' wages to fall below the federal minimum wage of $7.25 per hour required by the Fair Labor Standards Act. Significant MSPA violations were also found at the farm, including failure to pay wages when due; failure to disclose employment terms and conditions to workers in a language they could understand at time of recruitment; failure to provide requisite wage statements; and failure to make and maintain legally required payroll records.

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Source: Department of Labor

This information is intended to be educational and should not be considered legal advice on any specific matter.