Barks v. Silver Bait, LLC, 15-5175

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
PartiesJOHN BARKS and BRENDA HOFFMAN, on behalf of themselves and others similarly situated, Plaintiffs-Appellants, v. SILVER BAIT, LLC and BRUNO DURANT, individually, Defendants-Appellees.
Docket NumberNo. 15-5175,15-5175
Decision Date02 October 2015

on behalf of themselves and others similarly situated, Plaintiffs-Appellants,
SILVER BAIT, LLC and BRUNO DURANT, individually, Defendants-Appellees.

No. 15-5175


October 2, 2015

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0242p.06

Appeal from the United States District Court for the Eastern District of Tennessee of Chattanooga.
No. 1:11-cv-00126—Harry S. Mattice, Jr., District Judge.

Before: MERRITT, McKEAGUE, and WHITE, Circuit Judges.


ON BRIEF: Martin D. Holmes, M. Reid Estes, Jr., DICKINSON WRIGHT PLLC, Nashville, Tennessee, for Appellants. William A. Blue, Jr., CONSTANGY, BROOKS, SMITH & PROPHETE, LLP, Nashville, Tennessee, for Appellees.


HELENE N. WHITE, Circuit Judge. John Barks and Brenda Hoffman appeal the district court's declaratory judgment, entered after a bench trial, holding that the term "agriculture" in the Fair Labor Standards Act (FLSA) includes the activities of their former employer, Silver Bait LLC (Silver Bait), in growing and raising worms for sale as fishing bait. We AFFIRM.

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Bruno Durant, president of Silver Bait, moved to the United States from his native France in 1992 to grow worms. R. 67, Trial Tr., PID 1238; R. 82, Order, PID 1672. After raising worms on a farm in Georgia for nearly a decade, Durant relocated to rural Tennessee, where he purchased 750 acres of land. R. 47, Defs.' Pretrial Br., PID 257; R. 67, Trial Tr., PID 1258. Durant and his wife established the current Silver Bait operations on the property in early 2005. R. 67, Trial Tr., PID 1268-69; R. 82, Order, PID 1672.

Silver Bait describes itself as a "partially integrated farming operation" equipped to house, grow, and package bait worms for sale directly to retailers. R. 47, Defs.' Pretrial Br., PID 256. Silver Bait imports seven- to eight-ton truckloads of baby worms from Europe and feeds and grows them in seven concrete structures ("worm houses") Durant built on his property. R. 66, Trial Tr., PID 935; R. 67, Trial Tr., PID 1247, 1300-01; R. 82, Order, PID 1673. These worm houses are 540 feet long and fifty feet wide with an eight-foot incline from one end to the other to aid water drainage. R. 67, Trial Tr. PID 1247; R. 82, Order, PID 1673. Inside, each worm house has a ten-foot wide tractor driveway down the center, flanked by twenty-foot worm beds on either side. R. 67, Trial Tr., PID 1247; R. 82, Order, PID 1673.

Silver Bait workers take the baby worms off the trucks and deposit them directly onto the empty concrete beds. R. 66, Trial Tr., PID 955-56; R. 82, Order, PID 1673. The baby worms are then covered with a corn-based feed. R. 66, Trial Tr., PID 942; R. 82, Order, PID 1673. Durant decided to grow his own corn in fields located on Silver Bait's 750 acres to ensure the quality of the feed.1 R. 82, Order, PID 1673. Workers send the corn silage through a grinder and combine it with a mixture of peat moss, lime, and water. R. 82, Order, PID 1673. The feed mixture is driven into the worm houses on a tractor and dropped on top of the baby worms in their beds. R. 66, Trial Tr., PID 941-42, 1014. The worms are fed about three times a week and are usually left in the beds to grow for two or more months. R. 82, Order, PID 1673. The baby worms weigh between 0.6 and 0.8 grams when they arrive, and are not fit for sale as bait until

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they reach sexual maturity and a weight of roughly 1.3 to 1.7 grams. R. 82, Order, PID 1673-74. During the relevant years, 2008 to 2011, Silver Bait fed and raised between fourteen and twenty-one truckloads of worms each year. R. 67, Trial Tr., PID 1300-01.

When the worms reach the appropriate size, they are harvested. A machine lifts the worms and their feed mixture out of the beds and sifts out some of the dirt. R. 66, Trial Tr., PID 943-45, 1014; R. 82, Order, PID 1674. Then another machine sorts the worms by size, and workers bring the worms to Silver Bait's packing room. R. 66, Trial Tr., PID 997-98, 1014; R. 82, Order, PID 1674. Silver Bait makes its own customized bait cups using an injection-molding machine, rather than purchasing typical Styrofoam or plastic cups designed for food and drink. R. 66, Trial Tr., PID 899; R. 67, Trial Tr., PID 1259. Workers in the packing room place roughly thirty worms in each cup. R. 66, Trial Tr., PID 1000-01. The cups are then placed on a conveyor belt, where they are filled with dirt and fitted with lids through an automated production process. Id. at PID 1001. Workers then take the filled cups, add labels, and load pallets for pickup by a delivery service. Id. at PID 1002.

Believing its employees fall within an exemption for agricultural workers, Silver Bait does not pay overtime. R. 67, Trial Tr., PID 1271. In April 2009, the Department of Labor's Nashville district office opened an investigation into possible violations of the FLSA's wage-and-hour laws at Silver Bait. R. 66, Trial Tr., PID 1041. The Nashville investigators reached a preliminary conclusion that Silver Bait does not qualify for the agricultural exemption, id. at PID 1046, 1049-50, but the case was transferred to the Knoxville office before the Nashville office completed its investigation. R. 82, Order, PID 1675 n.10. In 2010, the Knoxville office issued a final report finding Silver Bait's employees exempt. Id. at PID 1675. The report reasoned that Silver Bait is an "agricultural employer . . . because it employed seasonal workers to cultivate, grow and harvest agricultural or horticultural commodities" and its employees are "working exclusively on a farm for the farmer." Id. The Department of Labor ordered Silver Bait to pay overtime for one four-week period when the company acted as a wholesaler—importing worms and immediately reselling them to retailers—but its workers were otherwise treated as exempt. Id. at PID 1675-76.

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After obtaining consent forms from eleven other workers, Barks and Hoffman filed this action against Silver Bait and Durant under the FLSA provision permitting one or more employees to bring a private action "in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). R. 1, Complaint, PID 22-32. After the submission of consent forms from additional opt-in plaintiffs, the parties stipulated to a list of nineteen former employees (Plaintiffs, collectively) who would be owed unpaid overtime if Silver Bait and Durant (Silver Bait, collectively) were found to have willfully violated the FLSA. R. 21-23, 25-26, 28, Consent Forms; R. 53, Stipulation, PID 270-72.

The district court conducted a two-day bench trial. R. 82, Order, PID 1672. Because the parties stipulated to the amount of unpaid overtime at issue, their arguments focused on the applicability of the agricultural exemption. Plaintiffs contended that growing and raising worms—often called "worm farming" at trial—does not fall within the plain terms of the FLSA exemption. See, e.g., R. 67, Trial Tr., PID 1324. Silver Bait argued worm farming is agriculture under a common-sense reading of the statute. See, e.g., R. 67, Trial Tr., PID 1320-21. The district court agreed with Silver Bait and entered a declaratory judgment in its favor. R. 82, Order, PID 1684. Plaintiffs now appeal.


We review de novo the determination whether an employee is exempt from the FLSA's overtime provisions. Ale v. Tenn. Valley Auth., 269 F.3d 680, 691 (6th Cir. 2001). The district court found that Silver Bait's employees are exempt because growing and raising worms is agriculture. We agree.


The FLSA requires employers to pay covered workers overtime for time worked in excess of forty hours, but there are exemptions for enumerated occupations and industries. 29 U.S.C. §§ 207, 213. These exemptions are "narrowly construed against the employers seeking to assert them," A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945); accord Martin v. Ind. Mich. Power Co., 381 F.3d 574, 578 (6th Cir. 2004), and their "enlargement by

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implication" is precluded by the statute's detail and particularity, Citicorp Indus. Credit, Inc. v. Brock, 438 U.S. 27, 35 (1987) (quoting Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 616-17 (1944)) (internal quotation marks omitted). Only an employee who is "plainly and unmistakably within [an exemption's] terms and spirit" will be held exempt. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960); accord Chao v. Double JJ Resort Ranch, 375 F.3d 393, 396 (6th Cir. 2004).

Among the exempt are "employee[s] employed in agriculture." 29 U.S.C. § 213(b)(12). This exemption "embrace[s] the whole field of agriculture." Maneja v. Waialua Agric. Co., 349 U.S. 254, 259 (1955); see also Addison, 322 U.S. at 612 (describing the exemption as "far-reaching"); Reich v. Tiller Helicopter Servs., Inc., 8 F.3d 1018, 1025-26 (5th Cir. 1993) (discussing the "broad reach" intended by Congress). Yet "no matter how broad" its coverage, the exemption must "apply only to agriculture," and courts are "left with the problem of what is and what is not properly included within that term." Maneja, 349 U.S. at 259.

The FLSA provides:


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