495 F.3d 403 (7th Cir. 2007), 05-1628, Reyes v. Remington Hybrid Seed Co., Inc.

Docket Nº:05-1628.
Citation:495 F.3d 403
Party Name:Daniel REYES, et al., Plaintiffs-Appellants, v. REMINGTON HYBRID SEED COMPANY, INC., et al., Defendants-Appellees.
Case Date:July 20, 2007
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 403

495 F.3d 403 (7th Cir. 2007)

Daniel REYES, et al., Plaintiffs-Appellants,


REMINGTON HYBRID SEED COMPANY, INC., et al., Defendants-Appellees.

No. 05-1628.

United States Court of Appeals, Seventh Circuit.

July 20, 2007

Argued Sept. 26, 2005.

As Amended Aug. 30, 2007.

Page 404

Vincent H. Beckman, Legal Assistance Foundation, Chicago, IL, Rodolfo D. Sanchez (argued), Texas Riogrande Legal Aid, Weslaco, TX, for Plaintiffs-Appellants.

Donald W. Shelmon (argued), Shelmon & Associates, Rensselaer, IN, for Defendants-Appellees.

Catherine K. Ruckelshaus, National Employment Law Project, New York, NY, Amicus Curiae.

Before EASTERBROOK, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.


Braulio Zarate, Jr., recruited members of the Reyes and Garcia families to detassel and rogue corn plants in fields under the control of Remington Hybrid Seed Company. Hybrids can be grown only if the plant's tassel is removed so that it may be fertilized by a different variety. Detasseling must be done several times per season, and though machines have been developed for this task Remington prefers hand detasseling when that is feasible. Removing unwanted plants (rogueing) to

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improve the average quality of a plot also is best done by hand. Zarate told the Reyeses and Garcias that they could expect to work between six and eight weeks in Remington's fields (for between 72 and 84 hours a week), followed by work in Remington's plant sheds; he promised free housing in Indiana during that time. The families accepted the offer and traveled from Texas to Indiana.

Zarate furnished only dilapidated and overcrowded housing, however, and about 20 hours' work per week for five weeks. He did not fully compensate everyone for even that limited time and failed to make appropriate payments to the Social Security system for their work. Disappointed, the Reyeses and Garcias (collectively the workers) filed this suit under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19, and the Migrant and Seasonal Agricultural Workers Protection Act (AWPA), 29 U.S.C. §§ 1801-72. Zarate defaulted; a judgment against him for more than $100,000 has been entered. But the workers never expected to collect much from Zarate. Their main target is Remington, which they call a joint employer with Zarate. The district court, however, concluded that Zarate was the workers' only employer. Summary judgment was entered in favor of Remington and its two senior managers, who the workers propose to hold derivatively liable under 29 U.S.C. §§ 203(d), 216(b). To simplify the exposition we disregard the managers and discuss only the claims against Remington.

Remington hired Zarate to provide detasseling and rogueing services; he engaged and paid the workers. The agreement between Remington and Zarate is a standard form for creating an independent-contractor relation. Zarate had no business independent of his work for Remington and apparently lacked liquid assets. Remington advanced the money that Zarate needed to secure workers' compensation insurance, and several times during the season Remington advanced funds so that Zarate could pay his crew. Zarate did not supply any tools; even the portable toilets came from Remington. Although the workers do not contend that these facts spoil the independent-contractor classification as a matter of Indiana law, they may be significant as a matter of federal law, for reasons we discuss later. The workers' principal contention is that it just doesn't matter whether Zarate was an independent contractor, because under the FLSA the term " '[e]mploy' includes to suffer or permit to work." 29 U.S.C.§ 203(g). Remington permitted Zarate's crew to work on its crops and that, plaintiffs maintain, is that. The AWPA uses the FLSA's definition of "employ," see 29 U.S.C. § 1802(5), so victory on this issue under either statute carries over to the other.

Before any of the workers arrived in Indiana, however, and thus before the statutory definition could come into play, they had dealings with Zarate in Texas. Plaintiffs maintain that Remington should be liable for Zarate's failure to supply 70 hours' work weekly for six to eight weeks and to provide decent housing. This argument can't rest on § 203(g) unless it creates liability that runs backward in time, and there is no reason to read it in that fashion. Whether Remington is bound by Zarate's promises is wholly a matter of state law (whether of Indiana or Texas is a subject the parties do not discuss). This is so even if Zarate was Remington's agent. The FLSA doesn't guarantee minimum hours; it provides only a floor under the hourly rate of pay for hours actually worked. The AWPA likewise is silent about guarantees of work. Thus the workers' claim rests on common law. Zarate's contract with Remington establishes that he lacked actual authority to promise on

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Remington's behalf that the workers would receive either housing or any fixed quantity of work. So did he have apparent authority to bind Remington? The district judge thought not, observing that apparent authority depends on a manifestation by the principal and cannot be created by an agent's own words. See Restatement (Third) of Agency § 2.03 & comment c (2006).


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