Donaldson v. U.S. Dept. of Labor
| Decision Date | 06 May 1991 |
| Docket Number | No. 88-2920,88-2920 |
| Citation | 930 F.2d 339 |
| Parties | , 118 Lab.Cas. P 35,469 Lucius DONALDSON; George G. Melbourne; the Farmworker Rights Organization; Nelson Felix, Plaintiffs-Appellants, and Philama Jean Dore; Saintane Dore, on behalf of themselves and all others similarly situated, Plaintiffs, v. UNITED STATES DEPARTMENT OF LABOR; William E. Brock, Secretary, United States Department of Labor; William Haltigan, Regional Administrator, Region III Employment and Training Administration, U.S. Department of Labor; U.S. Immigration & Naturalization Service; Kent Barley; Stanley Bauserman; Robert S. Boyd; Harvey L. Brumback; Drilake Farms, Inc.; Fruit Hill Orchard; Glaize Virginia Orchards; W.R. Kiser; Marker-Miller Orchards; Kenneth McDonald; Roy McDonald; Orchard Management Company; Harold G. Nichols; R & T Packing; C.L. Robinson Corp.; Reb & Co.; Rinker Orchards, Inc.; D.K. Russell & Sons, Inc.; Senseny South Corporation; Bruce Swing; Timber Ridge Fruit Farm; Westwood Farm, Inc.; Robert Wyatt; Triple S. Associates; White Hall Orchards; Hearty-Virginia, Inc.; Fredrickson, Inc.; H.F. & T. Byrd, Inc.; Mt. Clifton Fruit Co.; John D. Wood; Darrell Worley; Ewers Orchards; Roland Snapp; Whitham Orchards, Inc.; Donald J. Kulick, Administrator for Regional Management, Defendants-Appellees, and Long Creek Farm; G. Hardy Grim, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Garry G. Geffert, West Virginia Legal Services Plan, Inc., argued, Martinsburg, W. Va. (Shelly Davis, Edward J. Tuddenham, Migrant Legal Action Program, Inc., Washington, D.C., on the brief), for plaintiffs-appellants.
Christopher Alan Weals, Seyfarth, Shaw, Fairweather & Geraldson, argued, Washington, D.C. (Thomas E. Wilson, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D.C., W.A. Johnston, Ronald J. Brown, Harrison & Johnston, Winchester, Va., on the brief), for defendants-appellees.
Before WIDENER and PHILLIPS, Circuit Judges, and McMILLAN, Senior United States District Judge for the Western District of North Carolina, sitting by designation.
This is an appeal by a class of farmworkers (workers) from the district court's dismissal by summary judgment of their class action against Virginia and West Virginia apple growers (growers). The workers' claim is that wages paid them during the 1986 harvest season were less than those required by applicable federal law, thereby entitling them to injunctive and monetary relief. The district court granted the growers' motion for summary judgment on the sole basis that because the Department of Labor (DOL) had approved the wages offered and paid and the growers reasonably had relied upon the approval, the growers' reliance constituted an absolute defense to any claim for underpayment the workers might assert, whatever its source. The workers' appeal requires us to decide three issues: whether the Wagner-Peyser Act (Wagner-Peyser), 29 U.S.C. Secs. 49, et seq., upon which the workers' claim as originally pleaded was based, confers a private right of action; if not, whether the district court erred in denying the workers leave to invoke by amendment the private right of action conferred by Sec. 504 of the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA), 29 U.S.C. Secs. 1801 et seq.; and whether, if the workers properly could invoke a private right of action under either statutory regime, the district court nevertheless properly granted summary judgment on the basis that the growers' reasonable reliance on DOL approval of the wages offered and paid would defeat a claim under either.
Because we think it sufficiently questionable under current law that a private right of action can be implied in Wagner-Peyser, we conclude that we should assume, without deciding, for purposes of this appeal that it may not be. On that basis, we then conclude that the district court erred in not permitting the workers to invoke by amendment the private right of action specifically conferred by Sec. 504 of AWPA. And we further conclude that because the district court erred in its factual premise that the DOL had approved in advance the challenged wage payments offered and then made by the growers, it necessarily erred in holding that the growers' reasonable reliance on that approval barred any recovery by the workers.
We therefore reverse the grant of summary judgment and remand for further proceedings.
The legal framework within which this controversy arose is that established by relevant provisions of the Immigration and Nationality Act (INA), 8 U.S.C. Secs. 1101, et seq., and the Wagner-Peyser Act, 29 U.S.C. Secs. 49, et seq., which regulate the compensation and working conditions of foreign and domestic migrant farmworkers under certain circumstances. At the time the events here in issue occurred, agricultural employers could petition for permission to employ foreign workers in times of labor shortage pursuant to the "H-2" provisions of the INA. See 8 U.S.C. Sec. 1101(a)(15)(H)(ii). Pertinent regulations required employers to secure certification from the DOL that qualified persons in the United States were not available to meet the labor demand and that employment of foreign workers would not adversely affect the wages and working conditions of similarly employed workers in the United States. See 8 C.F.R. Sec. 214.2(h)(3) (1986). Detailed DOL regulations governed this certification process. See 20 C.F.R., part 655 (1986). Regulations adopted pursuant to the Wagner-Peyser Act established an interstate clearance system to provide employers with a means for recruiting workers from other states to meet local labor demand. See id.; 20 C.F.R. Secs. 653.500-.503 (1986). Any employer who wanted to employ temporary foreign workers was therefore required first to seek U.S. workers through local employment service offices participating in the interstate clearance system. The net result of this complicated regulatory scheme is that U.S. workers are given preference over foreign workers for jobs that become available and, to the extent temporary foreign workers are employed, their employment may not adversely affect the compensation and working conditions of U.S. workers. See generally Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 594-96, 102 S.Ct. 3260, 3262-63, 73 L.Ed.2d 995 (1982).
An employer who anticipates a labor shortage files a "temporary labor certification application" with the local employment service office. Included in the application is a "job offer," the employer's basic recruitment tool, which details the terms and conditions of employment offered. If DOL determines that the job offer meets regulatory standards, it is approved for circulation through the interstate clearance system. After the prescribed recruitment period is complete, DOL either approves or denies temporary labor certification for the employer. If approved, the employer can then petition the Immigration and Naturalization Service for admission of temporary foreign workers. These foreign workers, and any U.S. workers recruited through the interstate system, are compensated according to the terms of the job offer. Thus all job offers by employers seeking to recruit temporary labor must comply with regulations governing the temporary labor certification process (H-2) and regulations governing the interstate clearance system.
Before the 1986 apple season, the growers in this case submitted applications seeking to employ foreign workers under the H-2 provisions. For over twenty years, these growers had paid their workers on a piece rate basis. 1 In 1986, however, DOL was under a permanent injunction to enforce a proportional increase in the piece rate consistent with any annual increase in the "adverse effect wage rate" (AEWR), 2 see 20 C.F.R. Sec. 655.207(c) (1986); Feller v. Brock, 802 F.2d 722, 725 (4th Cir.1986); NAACP v. Donovan (NAACP II), 566 F.Supp. 1202, 1207-07 (D.D.C.1983). In obvious response, the growers decided to abandon the piece rate payment method and offer a flat hourly rate equal to the AEWR: $4.72 for Virginia; $4.49 for West Virginia. Many of the growers also included in their job offers the following bonus provision:
Worker's pay may be supplemented from time to time with bonuses based on the type of picking, quality of fruit picked, productivity of worker, and duration of employment. Such additional payments will be at the option and discretion of the grower. All workers employed (foreign and domestic) will be paid identical bonuses for equal and comparable work.
Joint Appendix (J.A.) at 131. DOL had anticipated the growers' proposal to use a flat hourly wage rate and adopted the policy that job offers should not be rejected "solely" on the ground that the prevailing past practice had been to pay a piece rate wage or that adoption of the hourly rate method of payment might have an adverse effect on domestic workers because their hourly earnings might not be as high as when they were paid on a piece rate. 3 DOL accordingly approved the hourly wage rate as offered, but rejected the bonus provision as inconsistent with the disclosure requirements in 20 C.F.R. Sec. 653.501(d)(2)(x). 4 The growers then amended their job offers to eliminate the bonus provisions.
In this state of affairs, the workers filed this action in July 1986, seeking to enjoin the DOL from approving, and the growers from offering, the hourly wage rates proposed. 5 The workers charged that because the clearance system regulations mandated that wages offered be not less than "prevailing wages" of similarly employed agricultural workers in the area of intended employment, see id. Sec. 653.501(d)(4), and the prevailing wage under the piece rate system had yielded average earnings of over $6.00 per hour, the growers were obligated to pay a flat hourly wage rate of over $6.00. The district court denied the...
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