In an unpublished opinion, a divided Ninth Circuit Court of Appeals panel has determined that a district court erred in awarding Latino farm workers less than statutory damages for growers’ violations of Washington’s Farm Labor Contractors Act (FLCA). Perez-Farias v. Global Horizons, Inc., No. 10-35397 (9th Cir., decided August 17, 2011). The court remanded the case with directions to enter a damages award of nearly $2 million. The class claims were reportedly filed on behalf of more than 600 workers who accused two state growers and a farm labor contractor of violating federal labor laws. The plaintiffs claimed that they were illegally and intentionally displaced in 2004 by temporary agricultural workers from Thailand. The federal guest worker program allows labor contractors to bring foreign workers into the United States only if it can prove that workers cannot be found locally. While the lower court agreed that the defendants had violated…
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Hundreds of individually named Philippine banana plantation workers alleging physical and mental injury from exposure to pesticides have filed suit against a number of agricultural and chemical companies in a California state court seeking compensatory and punitive damages. Macasa v. Dole Food Co., No. BC467134 (Cal. Super. Ct., Los Angeles Cty., filed August 8, 2011). The plaintiffs allege that 1,2-Dibromo-3-chloropropane (DBCP), sold under the brand names Nemagon® and Fumazone®, is a “highly toxic and poisonous pesticide” that purportedly causes “sterility, testicular atrophy, miscarriages, congenital reproductive outcome, liver damage, asthma and various forms of cancer in humans when absorbed by the skin or inhaled.” They claim that DBCP continued to be used in the Philippines despite being banned in the United States by the Environmental Protection Agency in 1979. The complaint alleges that the U.S. Department of Agriculture advised the chemical company defendants as early as 1961 “to place precautionary warning…
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…
According to a news source, Dole Food Co. has tentatively agreed to settle the pesticide exposure claims of more than 5,000 former banana plantation workers in Nicaragua, Costa Rica and Honduras. They are represented by Provost Umphrey, whose lawyers apparently ensured that the workers had actually been employed on the plantations and experienced personal injuries from exposure to dibromochloropropane. Similar claims filed by other trial lawyers and involving hundreds of other plaintiffs have been dismissed due to alleged legal wrongdoing, including falsified medical records, client coaching and the intimidation of Dole investigators. The Eleventh Circuit Court of Appeals determined in March 2011 that a $97 million judgment reached in a Nicaraguan court against Dole and several other companies could not be recognized under Florida law. The terms of the preliminary settlement have not reportedly been disclosed. See The National Law Journal, June 14, 2011.
The Fourth Circuit Court of Appeals has determined that the time poultry workers spend donning and doffing protective gear at the beginning and end of their shifts must be compensated as an “integral and indispensable” part of the principal activity of employment. Perez v. Mountaire Farms, Inc., No. 09-1917 (4th Cir., decided June 7, 2011). Because the time the employees spent doffing and donning some of their gear during an uncompensated meal break was related to their meal break and took a minimal amount of time, the court ruled that time noncompensable. The court found that the employer did not willfully violate the law, thus a two-year statute of limitations was applied to the litigation. And the lack of willfulness was found to be evidence of its good faith, so the court denied the employees’ request for liquidated damages under the Fair Labor Standards Act.
More than 200 farm workers from Ecuador, Panama and Costa Rica have reportedly filed seven lawsuits against commercial banana growers and pesticide manufacturers, seeking to recover damages and medical monitoring costs for health conditions allegedly related to dibromochloropropane (DBCP) exposure. Aguilar v. Dole Food Co., Inc., No. __ (E.D. La., filed June 1, 2011). The complaints argue that defendants used DBCP from approximately 1960 to 1985—“and possibly into the 1990s”—in banana growing regions outside the United States, which banned the nematocide in 1979 after the Environmental Protection Agency (EPA) listed it as a suspected carcinogen. Plaintiffs claim that because they were not informed of the danger or provided with protective clothing, they injected DBCP into soil without the use of gloves, protective covering or respiratory equipment to prevent skin absorption or inhalation. “Many workers absorbed so much DBCP each day that their urine would give off the smell of the chemical…
A former employee of an Olathe, Kansas, waffle venue has brought a collective action against his employer alleging that it reported inaccurate tip earnings so that it would appear that his total earnings were compliant with the federal minimum wage. Spears v. Mid America Waffle House, Inc., No. 11-2273 (D. Kan., filed May 2010). Jared Spears, who was paid an hourly wage of $2.13 plus tips, contends that when he complained about the issue, he was given fewer hours to work and his wage “was further reduced by a mandatory meal credit that was deducted from his compensation whether he ate a meal or not.” He claims damages in excess of $75,000 and seeks injunctive and declaratory relief.
A federal court in Iowa has determined that 31 disabled men who worked at a turkey-processing plant were owed $1.7 million in back wages and liquidated damages by employers who compensated them at a rate of about $.41 per hour for years. Solis v. Hill Country Farms, Inc., No. 09-00162 (S.D. Iowa, Davenport Div., decided April 21, 2011). The recovery will compensate the workers for a three-year period. The two-year statute of limitations was extended for the defendants’ knowing and reckless disregard of federal minimum wage and overtime requirements because the Wage and Hour Division had previously investigated them for the same violations. The employees lived in a bunkhouse provided by the defendants, and their room and board expenses were deducted from their Social Security (SS) or Supplemental Security Income (SSI) benefits. Those expenses, which were increased over time, were also deducted from their pay; their take home of $65…
A Minnesota appeals court has reportedly decided a dispute over workers’ compensation deductibles in favor of a pork processing company’s insurance carrier in litigation arising from injuries to employees exposed to the mist from pig brain tissue. Quality Pork Processors Inc. is apparently considering whether to appeal the ruling to the state supreme court. According to counsel for the company, the matter involves a contractual dispute and has no effect on benefit payments to those infected while working on or near the line called the “head table.” They apparently used compressed air to remove pigs’ brains and were diagnosed with an unusual neurological disease that causes symptoms including weakness, fatigue, confusion, and seizures. The pork processor contends that the contract language addressing how deductibles were calculated is ambiguous and disagreed that each accident should be decided separately. See The Austin Daily Herald, April 14, 2011.
The Ninth Circuit Court of Appeals has determined that the owner of peach and pear orchards in Oregon violated the law by crediting its seasonal workers’ housing costs toward their minimum wage and by paying them the day after their last workday. Bobadilla-German v. Bear Creek Orchards, Inc., Nos. 10-35205, 10-35268 (9th Cir., decided April 12, 2011). The owner recruited several hundred seasonal farm workers in Arizona for the month-long harvest in 2004-2006 and offered them optional on-site housing and meals. The company charged $5-$7 a day for housing and deducted that amount from workers’ paychecks, crediting it toward their minimum wage. “In many instances, if housing costs were not credited toward the workers’ minimum wage, their wage would have been below the lawful minimum wage.” The workers generally received their final paychecks on the day following their last day of work. A class of workers sued the company, alleging…
