Rodriguez v. Pure Beauty Farms, Inc.
| Decision Date | 09 January 2013 |
| Docket Number | No. 12-13953,D.C. Docket No. 1:11-cv-20250-JAL,12-13953 |
| Parties | EUTOLIO A. RODRIGUEZ, FRANCISCO JAVIER TOLEDO HERNANDEZ, Plaintiffs-Appellants, v. PURE BEAUTY FARMS, INC., DEBORAH L. JORDAN, ENRIQUE A. YANES, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
Appeal from the United States District Court
for the Southern District of FloridaBefore CARNES, BARKETT and HULL, Circuit Judges.
Plaintiffs Eutolio A. Rodriguez and Francisco Javier Toledo Hernandez appeal the district court's grant of summary judgment, in favor of their former employer Pure Beauty Farms, Inc. and its owner Enrique A. Yanes, disposing of Plaintiffs' claims for unpaid overtime wages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a)(1). The district court ruled that Plaintiffs Rodriguez and Hernandez, as agricultural workers, were exempt from the FLSA's overtime provisions. After review, we affirm.1
Pure Beauty Farms ("the Farms"), a commercial nursery-farming operation, cultivates and grows plants on land owned by the Farms in Florida. The Farms transports its plants to Home Depot sites where employees of the Farms continue to care for the plants. The Farms' plants are kept in staging areas within the stores' lawn and garden departments. The plants remain the property of the Farms until they are scanned at Home Depot's register as part of a customer's purchase. Home Depot then pays the Farms an agreed upon price for the plant. Unsold plants arereturned to the Farms. And, the Farms bears the loss if one of its plants dies on the shelf before sale or is returned by the customer.
Plaintiffs Rodriguez and Hernandez worked for the Farms as "merchandisers" or "merchants." Plaintiffs' job was to make sure that the Farms' plants, while located in Home Depot stores, remained healthy, attractive, and in a sellable condition until they were purchased. To keep the plants well-maintained at the Home Depot sites, Plaintiffs' duties included inspecting the plants for insects, ensuring they were watered and, if necessary, watering them, arranging them in the store so that they would get the right amount of sunlight or shade, and removing dead flowers, leaves, thorns, branches or rotted buds. Plaintiffs also kept the plant staging areas clean, sent unsalable plants back to the Farms and requested more plants. Plaintiffs took care of and handled only plants belonging to the Farms.
Both Plaintiffs Rodriguez and Hernandez averaged over forty hours of work per week. For those hours in excess of forty, the Farms paid Rodriguez and Hernandez straight time, rather than overtime, wages.
An employee is exempt from the FLSA's overtime provisions if he is "employed in agriculture." See 29 U.S.C. § 213(a)(6). 2 The FLSA defines "agriculture" two ways: (1) "primary agriculture" and (2) "secondary agriculture." 29 C.F.R. § 780.105; see also Sariol v. Fla. Crystals Corp., 490 F.3d 1277, 1279 (11th Cir. 2007). 3 Under the FLSA, "primary agriculture" includes specific farming activities, such as cultivation or tillage of the soil. 29 U.S.C. § 203(f).
The FLSA provides a much broader definition of "secondary agriculture." Sariol, 490 F.3d at 1279. Under the FLSA, "secondary agriculture" consists of "any practices . . . performed by a farmer or on a farm as incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market." 29 U.S.C. § 203(f); see also 29 C.F.R. § 780.105 ().
We agree with the district court that the work Plaintiffs Rodriguez and Hernandez performed for the Farms falls within the meaning of "secondaryagriculture."4 The definition of secondary agriculture has three requirements: (1) the "practice must be performed either by a farmer or on a farm"; (2) it must "be performed either in connection with the farmer's own farming operations or in connection with farming operations conducted on the farm where the practice is performed"; and (3) it must be "performed 'as an incident to or in conjunction with' the farming operations." 29 C.F.R. § 780.129; see also Sariol, 490 F.3d at 1279-80.5
As to the first requirement, to be a "farmer" within the meaning of the agricultural exemption, "the employer must be engaged in activities of a type and to the extent that the person ordinarily regarded as a 'farmer' is engaged." 29 C.F.R. § 780.130. A farmer also generally "performs his farming operations on land owned, leased, or controlled by him and devoted to his own use." Id. 29 C.F.R. § 780.131. However, the term "farmer" is "an occupational title" and broadly includes an employer who grows his own agricultural products but whose "only purpose is to obtain [those] products useful to him in a non-farmingenterprise which he conducts." Id. The regulation even gives the example of "an employer engaged in raising nursery stock." Id. (emphasis added).
The Farms, a commercial nursery that grows and cultivates plants, is a "farmer" for purposes of the exemption. See 29 C.F.R. § 780.130 (). Further, as employees of the Farms, Rodriguez and Hernandez were also "farmers." See 29 C.F.R. § 780.132 (). Thus, the practices Rodriguez and Hernandez performed at the Home Depot sites were performed "by a farmer."
In addition, those practices were performed "in connection with the farmer's own farming operations." See 29 C.F.R. § 780.129, id. § 780.137 (). It is undisputed that Rodriguez and Hernandez maintained only plants owned and grown by the Farms; therefore, their work was in connection with the Farms' own farming operations. Thus, the first two requirements of the secondary definition of agriculture are easily met.
The parties' dispute focuses primarily on the third requirement—whether the practices Rodriguez and Hernandez performed for the Farms, but on Home Depotstore-sites, were "incident to or in conjunction with" the Farms' farming operations. See 29 C.F.R. § 780.129. "Generally, a practice performed in connection with farming operations is within the statutory language only if it constitutes an established part of agriculture, is subordinate to the farming operations involved, and does not amount to an independent business." 29 C.F.R. § 780.144. When, as here, the practice is performed on "agricultural or horticultural commodities," to determine whether "the practice is conducted as a separate business activity rather than as a part of agriculture," consideration is given to, among other things: (1) whether "the type of product resulting from the practice" remains in its raw or natural state or changes; (2) "the value added to the product as a result of the practice and whether a sales organization is maintained for the disposal of the product"; and (3) whether the product is "sold under the producer's own label rather than under that of the purchaser." 29 C.F.R. § 780.147. A farmer or his employees selling the farmer's own agricultural commodities is also a practice "incident to or in conjunction with the farming operations" as long as "it does not amount to a separate business." 29 C.F.R. § 780.158(a).
In addition, the Department of Labor has specific regulations addressing employees of nurseries. If nursery employees are engaged in "[p]lanting, cultivating, watering, spraying, fertilizing, pruning, bracing, and feeding thegrowing crop," they are employed in agriculture. 29 C.F.R. § 780.205. "Employees of a grower of nursery stock who work in packing and storage sheds sorting the stock, grading and trimming it, racking it in bins, and packing it for shipment are employed in 'agriculture' provided they handle only products grown by their employer and their activities constitute an established part of their employer's agricultural activities and are subordinate to his farming operations." 29 C.F.R. § 780.209 (emphasis added). However, if the "grower of nursery stock operates, as a separate enterprise, a processing establishment or an establishment for the wholesale of retail distribution of such commodities, the employees in such separate enterprise are not engaged in agriculture." Id. (citations omitted). "Although the handling and the sale of nursery commodities by the grower at or near the place where they were grown may be incidental to his farming operations, the character of these operations changes when they are performed in an establishment set up as a marketing point to aid the distribution of those products." Id.
Section 780.209 cites as contrasting examples Walling v. Rocklin, 132 F.2d 3 (8th Cir. 1942), and Mitchell v. Huntsville Nurseries, 267 F.2d 286 (5th Cir.1959).6 In Walling, the employees worked at a flower shop owned by a nearby greenhouse, and ninety percent of the flowers they sold to both the wholesale and retail trade were cultivated at the greenhouse. The Eighth Circuit concluded that the flower shop was not a separate enterprise, but instead was maintained "in connection with and incidental to" the greenhouse and that its employees were exempt under the secondary definition of agriculture. Walling,132 F.2d at 6-7.
In contrast, in Mitchell, the employees worked at a packing and storage warehouse of a large plant wholesaler. The employees handled primarily nursery stock from other, out-of-state growers, not from the wholesaler's own nearby farm, which had its own warehouse for its nursery stock. The Fifth Circuit concluded that the work performed at the warehouse was "incidental to, or in conjunction...
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