111 F.3d 633 (9th Cir. 1997), 96-35209, Torres-Lopez v. May

Docket Nº:96-35209.
Citation:111 F.3d 633
Party Name:(BNA) 1599, 97 Cal. Daily Op. Serv. 2734, 97 Daily Journal D.A.R. 4669 Adelaida TORRES-LOPEZ; Guadalupe Montez-Torres; Maria Montez-Torres; Ramon Montez-Torres; Juan Arias-Ayala; Moises Cristobal-Hernandez; Sabino Estrada-Olvera; Rosario Gil-Armenta; Alberto Hernandez-Chavez; Heriberto Hernandez-Perez; Baltazar Pizano-Cadeza; J. Jesus Sanchez-Casta
Case Date:April 09, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 633

111 F.3d 633 (9th Cir. 1997)

(BNA) 1599,

97 Cal. Daily Op. Serv. 2734,

97 Daily Journal D.A.R. 4669

Adelaida TORRES-LOPEZ; Guadalupe Montez-Torres; Maria

Montez-Torres; Ramon Montez-Torres; Juan Arias-Ayala;

Moises Cristobal-Hernandez; Sabino Estrada-Olvera; Rosario

Gil-Armenta; Alberto Hernandez-Chavez; Heriberto

Hernandez-Perez; Baltazar Pizano-Cadeza; J. Jesus

Sanchez-Castaneda; Guillermo Urias-Bero, Plaintiffs-Appellants,


Robert MAY; Bear Creek Farms, a partnership; Tee Pee

Farms, Inc.; GCP Farms, Inc.; May Farms, Inc.,


No. 96-35209.

United States Court of Appeals, Ninth Circuit.

April 9, 1997

Argued and Submitted Jan. 8, 1997.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Page 636

Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding; D.C. No. CV-94-00851-JMS.

Michael Dale, Oregon Legal Services Corporation, James A. Boon, Oregon Law Center, Inc., Portland, OR, for plaintiffs-appellants.

Arthur E. Schmidt, Oregon Legal Services Corporation, Portland, OR, for Adelaida Torres-Lopez and Sabino Estrada-Olvera.

Paul R.J. Connolly, Donaldson, Albert, Tweet, Connolly, Hanna & Muniz, Salem, OR, attorneys for defendants-appellees.

Mary J. Rieser, United States Department of Labor, Washington, D.C., for amicus, United States Secretary of Labor.

Bruce Goldstein, Farmworker Justice Fund, Inc., Washington, D.C., for amici, George Miller, William D. Ford, and Howard L. Berman.

John J. Rademacher, American Farm Bureau Federation, Park Ridge, IL, for amici, Farm Bureau Federations.

Rebecca A. Smith, Columbia Legal Services, Olympia, WA; William G. Hoerger, California Rural Legal Assistance, San Francisco, CA; Michael McCarthy, Davies, Roberts & Reid, Seattle, WA, for amici curiae Juan Herrejon, Mauro Madrid, Abel Garcia Lara and the United Farmworkers of America, Washington State Region.

Before: ALDISERT, [*] PREGERSON, and THOMAS, Circuit Judges.

PREGERSON, Circuit Judge:

In their second amended complaint ("complaint"), appellant farmworkers allege that appellees (collectively, "Bear Creek Farms") 1 violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219; the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), 29 U.S.C. §§ 1801-1872; and Oregon labor laws.

The alleged violations include the failure to pay the farmworkers the minimum wage required by state and federal law, and numerous statutory violations of record-keeping, reporting, safety, insurance, and registration requirements. The parties do not dispute that these violations occurred. Their only dispute concerns whether Bear Creek Farms was liable for the alleged violations as a "joint employer" of the farmworkers within the meaning of the FLSA, AWPA, and Oregon labor laws.

On cross-motions for summary judgment, the district court concluded that Bear Creek Farms was not a joint employer of the farmworkers within the meaning of the FLSA and AWPA. In arriving at this conclusion, the district court considered the five regulatory factors set forth in 29 C.F.R. § 500.20(h)(4)(ii). These regulatory factors relate to whether an alleged joint employer exerts control over workers and their wages. The district court also considered non-regulatory factors applied in judicial interpretations of the FLSA found in federal case law. These non-regulatory factors relate to whether a farmworker is economically dependent on the alleged joint employer. The district court therefore granted summary judgment on the FLSA and AWPA claims, ruling that Bear Creek Farms was not a joint employer of the farmworkers.

Holding that the FLSA and AWPA standards for joint employment may be used to define joint employment under Oregon law as well, the district court also granted summary judgment to Bear Creek Farms on the Oregon labor law claims. These state law claims have not been fully addressed by the

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parties on appeal. Moreover, the district court's grant of summary judgment relies largely on the district court's interpretation of the FLSA and AWPA standards for joint employment. Accordingly, we decline to address the Oregon law claims. We instead focus on the district court's analysis of the FLSA and AWPA.

We disagree with the district court's conclusion that Bear Creek Farms was not a joint employer of the farmworkers for purposes of the FLSA and AWPA. After considering both the regulatory and non-regulatory factors, we conclude as a matter of law that Bear Creek Farms is a joint employer of the farmworkers.


In 1992, Bear Creek Farms leased land to grow cucumbers to sell to a cannery. Robert May, a Bear Creek Farms official, had primary responsibility for the cucumber crop.

May entered into an oral contract with Jaime Rodriguez of Ag-Labor Services ("Ag-Labor"), a farm labor contractor. 2 Ag-Labor agreed to supply and supervise farmworkers to harvest Bear Creek Farms' cucumber crop. In exchange, Bear Creek Farms agreed to pay Ag-Labor fifty percent of the gross proceeds from the sale of the cucumber crop to the cannery. This oral agreement was standard for the industry.

According to Rodriguez's affidavit, the oral contract provided that Bear Creek Farms had sole responsibility for furnishing the bins where the cucumbers were dumped for transportation to the cannery and for "all business tasks after the bins were filled," namely, unloading the bins onto Bear Creek Farms' trucks, transporting the cucumbers to the cannery, collecting the payments from the cannery, and paying Ag-Labors' fifty-percent share of the proceeds. Bear Creek Farms also maintained toilet facilities for the workers.

Rodriguez stated on the other hand that Ag-Labor was responsible for the harvesting tasks and related activities occurring prior to unloading the bins onto Bear Creek Farms' trucks. 3

At oral argument we learned that Ag-Labor did not actually recruit farmworkers to work at Bear Creek Farms. We also learned that the farmworkers did not form teams of harvesters that moved from farm to farm picking crops. Rather, individual farmworkers would learn by word of mouth that harvesting work was available at Bear Creek Farms. Hoping to be hired, the farmworkers would appear at the field on harvest days. Ag-Labor would then choose farmworkers from this group.

Ag-Labor harvested Bear Creek Farms' cucumber crop for thirty-seven days between July 13 and September 23, 1992. After completing the cucumber harvest, Bear Creek Farms paid Ag-Labor fifty percent of the proceeds from the sale of the cucumbers to the cannery. Ag-Labor, in turn, paid the farmworkers on a piece-rate basis. The rate which Ag-Labor paid to the farmworkers varied according to the grade of the cucumbers.

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During the first picking of the cucumbers, May and Rodriguez discussed ways to increase the percentage of payment to Ag-Labor so that it could pay the farmworkers more money. One reason for paying the farmworkers more during the initial days of the harvest was that their work was more difficult. In accordance with industry practice, they had to "train" the cucumber vines to stay in the same row. This resulted in lower wages for the farmworkers who were paid according to the weight of the cucumbers picked. Ultimately, Bear Creek Farms agreed to pay Ag-Labor more money during this period.

Rodriguez consulted with May in deciding when to have the farmworkers start harvesting the cucumbers. Bear Creek Farms staggered the planting dates to prevent cucumber deliveries from flooding the cannery and to ensure that a large number of farmworkers would not be needed at any given time for harvesting. May would sometimes modify the harvest schedule because of changing conditions. For example, he once told Rodriguez to delay the harvest because of a shortage of bins.

Under the oral agreement, the parties implicitly understood that May had the right to inspect the plants and tell an Ag-Labor supervisor when a row needed to be picked again. May monitored the condition of the cucumber field. For example, May was regularly in the field when the cucumbers were being picked. May would also look over the cucumber plants to see that the vines were properly trained. During the course of the 1992 harvest, Rodriguez communicated with May three or four times a week to ensure May's satisfaction with the farmworkers.


  1. Standard of Review

    Whether an entity is a "joint employer" under the FLSA and AWPA is a question of law. Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1469 (9th Cir.1983); Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996). We review questions of law de novo. United States v. Michael R., 90 F.3d 340, 343 (9th Cir.1996).

  2. Analysis

    1. Farmworker protections under the FLSA, FLCRA, and AWPA

    Congress passed the FLSA in 1938 to correct and eliminate those "conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202(a). The FLSA established a minimum wage; regulations concerning "maximum hours"; recordkeeping and reporting requirements; child labor provisions; and a system of civil and criminal penalties for violations of the FLSA. See generally id. §§ 201-219. Although the FLSA as adopted in 1938 excluded agricultural workers from its minimum wage protection, Congress amended the FLSA in 1966 to extend minimum wage protection to some agricultural workers. See S.Rep. No. 89-1487 (1966), reprinted in 1966 U.S.C.C.A.N. 3002 (discussing how the 1966 amendment would extend minimum wage protection to 390,000...

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