African-Americans who briefly worked at a North Carolina farm in 2010 allege that they were subjected to a hostile work environment and discriminatory job conditions so the employer could obtain certification under a Department of Labor (DOL) program that allows farmers to hire seasonal foreign workers when U.S. workers are not available and hiring foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Fulford v. Alligator River Farms, LLC, No. 11-00103 (E.D.N.C., filed June 20, 2011). The Equal Employment Opportunity Commission allegedly issued the plaintiffs a letter of determination relating to their claims.

According to the complaint, DOL certification requires that employers
undertake specified efforts to recruit U.S. workers after the need for the
services of foreign workers (referred to as H-2A workers) arises. Among other
matters, the employer must submit a job, or clearance, order to the local
state employment agency. The order must include job-related information
including wages, working conditions, and productivity standards, and that the
employer can request, but not require, workers to work on federal holidays
and the Sabbath.

The plaintiffs allege that the defendant hired 56 H-2A workers from Mexico in 2009 and intended to rehire these workers in 2010. The plaintiffs allegedly began working for the defendant March 25, 2010, under the DOL certification procedures. They allege that they were assigned to plant broccoli but not provided with tools to do the job. They were allegedly subject to exhortation, correction, derogatory remarks, orders to speed up, and a daily changing standard of production. They also allege that the clearance order included an hourly wage specification but that they were left with the impression by supervisors that they would be paid on a piece rate. They purportedly worked on one side of the field while Mexican workers were on the other side of the field, and different, more favorable working conditions were allegedly accorded to the Mexican workers. All of the plaintiffs except one were either terminated by March 28 for failure to meet production requirements or quit “to avoid the humiliation of being ‘cut.’” The final plaintiff was asked to work on a Sunday and terminated when he reported to work after going to church.

Alleging violations of their rights under the Migrant and Seasonal Agricultural
Worker Protection Act (AWPA) and violations of their civil rights under Title
VII, the plaintiffs seek declaratory and injunctive relief, as well as statutory
damages of $500 per person for each of the AWPA violations, compensation
for non-pecuniary losses, punitive damages, costs, expenses, and interest.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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