Jimenez v. GLK Foods LLC, Case No. 12-CV-209
| Decision Date | 23 May 2016 |
| Docket Number | Case No. 12-CV-210,Case No. 12-CV-209 |
| Parties | ALEJANDRO JURADO JIMENEZ et al., Plaintiffs, v. GLK FOODS LLC and RYAN A. DOWNS, Defendants. AND JOSE ENRIQUEZ RAMIREZ et al., Plaintiffs, v. GLK FOODS LLC and RYAN A. DOWNS, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
CONSOLIDATED DECISION AND ORDER ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT
These related class actions arise out of the recruitment and employment of Mexican migrant workers as "trim-line laborers" to process raw cabbage into sauerkraut at a facility owned by Defendant GLK Foods, LLC, in Bear Creek, Wisconsin. Defendant Ryan Downs is an owner and president of GLK. Over the years, GLK applied for and was granted authorization to employ the workers under the federal government's "H-2B" guest-worker visa program. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b). Alexandro Jurado Jimenez et al. brought Case No. 12-cv-209 (hereinafter "the Jimenez case") on behalf of approximately 210 migrant workers who worked at the cannery during one or more of the 2006 through 2011 late summer/early fall seasons, with the exception of 2009 when GLK missed the deadline for its application for authorization to import H-2B workers. Jose Enriquez Ramirez et al. brought Case No. 12-cv-210 ("the Ramirez case") on behalf of approximately 35 other H-2B workers who were recruited by GLK in 2011, but then not provided jobs after they had incurred the expenses of obtaining visas and traveling to the Mexican-United States border for transportation to the job site. The cases are before the Court on various motions for partial summary judgment.
In a previous decision, the Court granted in part the motion for summary judgment of the Plaintiffs in the Jimenez case on their claim that Defendants violated the Fair Labors Standards Act (FLSA), 29 U.S.C. §§ 201-219, by failing to reimburse certain travel expenses, visa fees and border crossing expenses to the extent necessary to prevent the first week wages of the 2010 and 2011 workers from falling below the federal minimum wage. (ECF No. 119.)1 The Plaintiffs in both cases (collectively "Plaintiffs") and the Defendants ("GLK") have now filed cross motions for summary judgment on several of the remaining claims, which arise under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 29 U.S.C. §§ 1801-1871, the Wisconsin Migrant Labor Act (WMLA), Wis. Stat. §§ 103.90-.97, Wisconsin's wage payment and living wage laws,2 and the State's common law governing contract. This Decision and Order will address all pending motions in these two cases. For the reasons that follow, Plaintiffs' motions will be granted in part and denied in part, and GLK's motions will be denied.
GLK is the largest producer of sauerkraut in the world. (Pls.' Consolidated Statement of Undisputed Facts (PSUF) ¶ 1, ECF No. 117.) Defendant Ryan Downs was an owner and the president of GLK at all times relevant to these cases. GLK is a family-owned, agriculturally-dependent business that processes more than 120,000 tons of raw cabbage into sauerkraut annually and sells its product under brand names including Cortland Valley, Silver Floss, and Krrrrisp Kraut, among others. (Ryan A. Downs Dep. Tr. 34:22-23, ECF No. 117-3.) GLK has operations in the state of New York and in Bear Creek, Wisconsin. This case involves workers hired at GLK's sauerkraut cannery plant in Bear Creek, Wisconsin.
At the Bear Creek plant, raw cabbage grown at GLK farms and elsewhere is dumped by trucks into a yard. After field waste is separated out, each individual head of cabbage is "cored" using a machine operated by an individual person. The heads of cabbage are then fed from the coring machines into a cleaner that sprays high-pressure water and tumbles the cabbage to remove outer leaves and dirt. The cabbage is then inspected and trimmed before being shredded into coleslaw, salted and put in vats for fermentation. (Downs Dep. Tr. 6-10.) This cutting and coring work is known as "trim-line" labor.
GLK requires trim-line laborers during the "cutting season" of the sauerkraut production process. Although the cutting season generally takes place from August to November, the beginning of a given season is a function of when farmers are able to harvest their cabbage crops in a particular year, based largely on weather conditions, and the end date is a function of how much cabbage the harvest yields.
Historically, GLK has employed migrant workers from Mexico as trim-line laborers. According to Downs, this is because it is difficult to find quality local workers who do not already have full-time employment. (Id. at 11:19-20.) By the 1990s, GLK was hiring many of its trim-line laborers from a small Mexican village called Santiago Capitiro in the state of Guanajuato. This occurred through the recruiting efforts of Rafael Jimenez Arroyo, a full-time GLK employee who was originally from that village. Arroyo has worked at GLK since 1992 and has proved to be a reliable worker. Downs also describes GLK's arrangement with workers from Arroyo's hometown as "a matter of reliability": (Id. at 17:10-16.) Although Arroyo handled official recruiting activities, in the late 1990s and early 2000s Downs also traveled to Santiago Capitiro, sometimes bringing his family, both for a vacation and to get to know his workers.
In order to bring trim-line laborers from Santiago Capitiro to Bear Creek, Wisconsin, GLK was required to comply with the H-2B program, the temporary work visa program for non-agricultural workers which grew out of the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1101(a)(15)(H)(ii)(a)-(b). H-2 visas are granted to temporary workers from foreign countries to supplement the domestic labor market. See Mathes, Charles C., The Department of Labor's Changing Policies Toward the H-2B Temporary Worker Program: Primarily for the Benefit of Nobody, 80 FORDHAM L. REV. 1801, 1807-808 (2012) (hereinafter Mathes). The essential purpose of the H-2 program is "to permit employers to utilize temporary foreign workers if U.S. workers could not be found and if the use of such workers would not adversely affect thewages or working conditions of similarly employed domestic workers." Mathes at 1807. The IRCA divided the H-2 visa into two separate categories: the H-2A visa for temporary agricultural workers and the H-2B visa for temporary non-agriculture workers.3 In enacting the IRCA, Congress provided greater protection to H-2A workers because it viewed them as more susceptible to exploitation. Mathes at 1807-08.
In order to participate in the H-2B program, the employer must file a prevailing wage request with the DOL.4 The DOL then makes a prevailing wage determination (PWD) for the particular job position the employer needs filled. The employer is then required to advertise the position to all potential workers at a wage at least equal to the PWD. 20 C.F.R. § 655.10. If insufficient U.S. workers apply, the employer then files an Application for Temporary Employment Certification with the DOL. (ECF No. 87-3, 4.) If after complying with all of the regulatory requirements, the DOL is satisfied that there are insufficient U.S. workers qualified for the H-2B position, the DOL certifies the employer's need for foreign workers for the period requested. The employer then petitions U.S. Citizenship and Immigration Services within the Department of Homeland Security to grant the visa application. Mathes at 1809-10. If the petition is granted, the employers either directly or through local recruitment agencies begin the process of recruiting the workers in their home countries.
Although GLK recruited workers directly through Arroyo's actions, GLK also contracted with employment agencies specializing in the H-2B program to assist with submitting its H-2Bpetition to the U.S. Department of Labor, helping workers obtain temporary work visas, and transporting workers from Mexico to Wisconsin. GLK hired 75, 74, and 90 trim-line laborers through the H-2B program in 2006, 2007, and 2008, respectively. (PSUF ¶¶ 40-42.) Exactly what these workers were told prior to beginning their employment in Wisconsin is not clear from the record. Downs testified that Arroyo was given "a set of rules he had to abide by regarding disclosure of work conditions, wages, all of the things that the federal and state government require of us." (Downs Dep. Tr. 19:10-13.) However, Arroyo himself testified (through an interpreter) that at one point in time he was overseeing GLK's recruiting in Mexico by telephone and without even leaving Wisconsin. (Rafael Jimenez Arroyo Dep. Tr. 46-47, ECF No. 117-7.) Additionally, even when he personally traveled to Santiago Capitiro, it is not clear what Arroyo told workers. He testified that he told prospective workers "[w]hen the season was going to start more or less and when it would end" (id. 41:12-13) (he could not know the exact dates at the time of his recruiting trips in the spring because they would depend on weather and growing conditions), and he also testified that he did not always provide complete information to recruits because many had been coming to GLK to work for years and knew the arrangement. (Id. 42.)
In any event, it is stipulated for purposes of summary judgment in these cases that neither GLK, nor any agent working on its behalf, provided H-2B workers hired in 2006-2008, or 2010 or 2011 with written disclosures of terms of employment or with written employment contracts as required by the AWPA and the WMLA. (Defs.' Resp. to PSUF ¶ 163, ECF No. 126.) Notwithstanding these infractions, discussed in more detail below, GLK's arrangement with the workers from Santiago Capitiro appears to have remained...
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