Charles v. Burton

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________________
FILED
U.S. COURT OF APPEALS
No. 96-9212 ELEVENTH CIRCUIT
________________________________ 03/12/99
D.C. Docket Nos. 7:92-CV-150-HL; THOMAS K. KAHN
6:95-CV-00053; CLERK
7:95-CV-00092

NICOLAS CHARLES;
CHARITE ASSEIGNE, et al.,
Plaintiffs, Counter-Defendants,
Appellants, Cross-Appellees,

versus

JOHN BURTON; FELIX BURTON,
et al.,

Defendants, Counter-Claimants,
Appellees, Cross-Appellants.

_________________________________________________________________

Appeals from the United States District Court
for the Middle District of Georgia
_________________________________________________________________
(March 12, 1999)

Before HATCHETT, Chief Judge, RONEY and CLARK, Senior Circuit Judges.

PER CURIAM:

The entire panel concurs in Parts I, II, and Part IV which discusses whether the appellees

“utilized” Wilner Luxama’s services, and Part V which holds that appellees John and Felix

Burton may be held liable for actual damages for their failure to verify Luxama’s registration
under 29 U.S.C. § 1842. Judge Roney dissents from Part III, which holds that the Burtons were

joint employers and therefore statutorily required to carry insurance or a liability bond.

In this case involving the Agricultural Workers Protection Act, 29 U.S.C. § 1801-1872

(1994) (AWPA), fifteen migrant farm workers challenge the district court’s grant of summary

judgment in favor of the appellees John Burton, Felix Burton, Little Rock Produce Company and

Bobby Hall. The district court found that the appellees were not joint employers of the farm

workers under the AWPA and did not award the farm workers actual damages for a violation of

the AWPA’s registration provision. We affirm in part, reverse in part and remand.

I. BACKGROUND

John Burton and Felix Burton (collectively, the Burtons) operated a farm in Brooks

County, Georgia. The Burtons principally grew cotton, corn, soy beans and peanuts on their

farm. In 1990, the Burtons decided to grow other vegetables -- snap beans and cucumbers -- and

contracted with Little Rock Produce Company (Little Rock), a produce packinghouse, and its

president and principal stockholder, Bobby Hall, to subsidize these new crops and to advance

money for labor costs. Both were to share in the profits. Little Rock also agreed to supply the

seeds for the snap bean and cucumber crops, boxes for the harvest and a trailer to transport the

beans, and the Burtons in turn agreed to market these crops through Little Rock.

Pursuant to the contract, Little Rock required the Burtons to fertilize the snap bean crop

and to obtain labor for its harvest. In 1990, the Burtons contacted the Georgia Department of

Labor to obtain workers for the snap bean crops, and Paul Emil Paul and Wilner Luxama, farm

labor contractors (FLC), agreed to supply them with workers for the snap bean harvest. The

Burtons eventually agreed to pay Luxama a set amount of money per box of snap beans that his

2
crew picked, and Luxama paid each worker a set amount per box.1 The 1990 harvest occurred

too late in the snap bean season, and consequently, Luxama’s workers spent a total of one-half of

a day working on the Burtons’ farm that year.

The next year, Luxama and his crew returned to the Burtons’ farm to harvest the 1991

snap bean crop. Luxama transported the 25 to 35 members of his Florida-based crew between

the Burtons’ farm and their temporary housing in Ashburn, Georgia.2 The Burtons would direct

Luxama to a particular snap bean field, and his crew picked all of the field’s beans. Luxama

directed and supervised the harvest of the snap beans, and the Burtons observed the progress of

the workers approximately two to three times a day. As they picked the snap beans, the workers

placed them in the boxes that Little Rock provided. At the end of the day, Luxama weighed all

of the boxes of snap beans, and a crew member placed the boxes onto a trailer that Little Rock

owned. The Burtons then transported the snap beans to Little Rock’s packinghouse, where a

broker selected and sold them.

The Burtons failed to earn a substantial profit from the 1991 snap bean crop, but they

decided to plant and harvest them for the next year.3 In 1992, Luxama returned with his crew to

harvest the crop. Luxama’s registration as a farm labor contractor with the Department of Labor

(as the AWPA requires) had lapsed in 1991 because he had failed to pay a fine that the

1
According to Luxama’s deposition testimony, the Burtons agreed to pay him between
$3.75 and $4 per box. Luxama in turn paid his workers $2.50 per box for the first picking, and
then $3 per box for the second and additional pickings. Luxama provided his workers a ticket
for each box they picked, and then paid them for each ticket the worker returned to him.
2
Luxama recruited his workers (Haitian immigrants) from Miami to pick crops,
including snap beans, in Georgia. He also helped the workers find housing when they arrived in
Georgia, although the crew paid for all of its housing expenses.
3
Since the 1991 crop failed to make a profit, the Burtons did not reimburse Little Rock’s
advancements for their labor costs.

3
Department of Labor had imposed. See 29 U.S.C. § 1811. As a result of this lapse and his

inability to pay the fine, Luxama failed to purchase liability insurance for the vehicles used to

transport his crew as the AWPA requires. See 29 U.S.C. § 1841.4 The Burtons failed to check

Luxama’s certification as an FLC, and failed to learn that Luxama no longer carried the required

insurance. See 29 U.S.C. §§ 1841(b) (duty to carry insurance of liability bond), 1842 (duty to

check registration). On the morning of June 3, 1992, one of Luxama’s trucks overturned while

transporting the workers to the fields, killing the driver and two workers and seriously injuring

others.5

In December 1992, the appellants sued John Burton, Felix Burton, Little Rock and Hall

for violations of the AWPA, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. and

Georgia’s common law of negligence. The appellants alleged, in part, that the appellees violated

the “registration, vehicle safety, vehicle insurance, record keeping, wage statement and wage

payment provisions of the AWPA,” and the appellees moved for summary judgment. After

4
Section 1841(b) of the AWPA provides:

(1) When using, or causing to be used, any vehicle for providing
transportation . . . each agricultural employer, agricultural association, and
farm labor contractor shall . . .
(C) have an insurance policy or a liability bond that is in effect which
insures the agricultural employer, the agricultural association, or the farm
labor contractor against liability for damages to persons or property
arising from the ownership, operation, or the causing to be operated, of
any vehicle used to transport any migrant or seasonal agricultural worker.

See 29 U.S.C. 1841(b)(1)(C).
5
The accident killed appellant Jean J. Maissoneuve (Avelie Maissoneuve appears as the
personal representative of his estate), rendered appellant Edner Phillipe a paraplegic, and caused
various injuries to appellants Nicolas Charles, Charite Asseigne, Miguel Aubout, Samson
Germain, Marcel Jean-Baptiste, Alexandre Joseph, Marcel Joseph, Fito Pierre, Frankel Pierre,
Fatami Saint Fleur, Gerard Simeon, Lavius Dit Servius Vil and Jean Jacques Vytelle. We shall
refer to these workers collectively as the appellants.

4
conducting an evidentiary hearing, the district court held that the appellees did not “employ” the

workers within the meaning of the AWPA and the FLSA, and granted the appellees summary

judgment. See Charles v. Burton, 857 F. Supp. 1574, 1583 (M.D. Ga. 1994). This conclusion

precluded the appellants from recovering any damages for the appellees’ failure to ensure that

Luxama’s truck carried either insurance or a liability bond. See 29 U.S.C. § 1841(b)(1)(C).

Thereafter, the appellees moved for summary judgment on the remaining claims, with (1)

Little Rock and Hall arguing that they had not “utilized” the services of Luxama pursuant to the

29 U.S.C. § 1842; and (2) the Burtons alleging that although they had utilized Luxama’s services

and violated the registration verification provisions under 29 U.S.C. § 1842, the workers were

entitled only to statutory damages under 29 U.S.C. § 1854(c)(1). The district court granted Little

Rock’s and Hall’s motions for summary judgment, finding that they had not “utilized” the

services of Luxama and his crew. See Charles v. Burton, No. 92-150-VAL (M.D. Ga. Mar. 7,

1995).6 The district court later found the Burtons liable for $350 in statutory damages per

worker for the violation of section 1842, but refused to award actual damages because the

workers’ injuries were “too far removed” from the Burtons’ failure to verify Luxama’s

registration. See Charles v. Burton, No. 7:92-cv-150 (M.D. Ga. Sept. 8, 1995) (granting

6
Appellee Bobby Hall died in October 1995, and the district court treated the appellants’
motion for substitution of party as a motion to substitute Bobby Hall, Jr. (the administrator of
Bobby Hall’s estate) as a defendant, and granted the appellants’ motion. See Charles v. Burton,
No. 7:92-cv-150 (M.D. Ga. July 30, 1996). Appellee Hall contends that the district court erred
in substituting him pursuant to Federal Rules of Civil Procedure 25(a). We find that the district
court did not abuse its discretion in substituting Bobby Hall, Jr., as a defendant after the
appellants timely filed a motion for substitution pursuant to Rule 25(a). See Virgo v. Riviera
Beach Assocs., Ltd., 30 F.3d 1350, 1357-58 (11th Cir. 1994) (interpreting Federal Rule of Civil
Procedure 25(c)).

5
summary judgment); Charles v. Burton, No. 92-150-VAL (M.D. Ga. July 26, 1996) (awarding

statutory damages).7

II. ISSUES

The issues we discuss are: (1) whether the district court erred in finding that the

appellees were not “joint employers” of the appellants, and were thus not liable under section

1841 of the AWPA (Part III); (2) whether the district court erred in finding that appellees Little

Rock and Hall did not “utilize” the services of the appellants under section 1842 of the AWPA

(Part IV); and (3) whether the district court erred in failing to award the appellants actual

damages for the Burtons’ violation of that provision (Part V).8

III. JOINT EMPLOYMENT

In 1983, Congress enacted the AWPA “to remove the restraints on commerce caused by

activities detrimental to migrant and seasonal agricultural workers; to require farm labor

contractors to register under this chapter; and to assure necessary protections for migrant and

seasonal agricultural workers, agricultural associations, and agricultural employers.” 29 U.S.C.

§ 1801. Included in the AWPA are requirements (1) that an FLC obtain a certificate from the

Secretary of Labor authorizing it to perform its duties, see 29 U.S.C. § 1811(a); 29 C.F.R. §

550.40 (1997); (2) that a person utilizing the services of an FLC verify the existence of such

7
In August 1995 the appellants also filed diversity lawsuits alleging common law
negligence claims against Little Rock and the Burtons. The district court consolidated those
claims with the AWPA and FLSA claims and granted summary judgment in favor of Little Rock
and the Burtons on the common law negligence claims. See Charles v. Burton, No. 7:92-150
(M.D. Ga. Nov. 30, 1995) (consolidating); Charles v. Burton, No. 7:92-cv-150 (M.D. Ga. Aug.
20, 1996) (granting summary judgment).
8
The appellants raise for the first time the issue of whether the appellees formed a
partnership or joint venture under Georgia law. This court, however, will not consider on appeal
issues not raised before the district court. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir.
1994).

6
certificate, see 29 U.S.C. § 1842; and (3) that an FLC and an agricultural employer carry either

an insurance policy or liability bond covering any vehicle used to transport agricultural workers,

see 29 U.S.C. § 1841; 29 C.F.R. 500.120.

The appellees contend, and the district court agreed, that they did not “employ” the

appellants, that they were not “agricultural employers” or “joint employers” within the meaning

of the AWPA and that the AWPA did not require them to carry insurance or a liability bond

under section 1841.9 See Charles, 857 F. Supp. at 1583. The definition of “employ” is the same

under the AWPA and the FLSA. See 29 U.S.C. 203(1); 29 U.S.C. § 1802(2). An entity

“employs” a person under the AWPA and the FLSA if it “suffers or permits” the individual to

work. See 29 U.S.C. § 203(g); 29 C.F.R. § 500.20(h)(1). “An entity ‘suffers or permits’ an

individual to work if, as a matter of economic reality, the individual is dependent on the entity.”

Antenor v. D&S Farms, 88 F.3d 925, 929 (11th Cir. 1996) (quoting Goldberg v. Whitaker House

Coop., Inc., 366 U.S. 28, 34 (1961)).

The AWPA’s concept of “employ” also includes “the joint employment principles

applicable under the [FLSA].” Aimable v. Long & Scott Farms, 20 F.3d 434, 438 (11th Cir.),

9
The AWPA defines “agricultural employer” as “any person who owns or operates a
farm, ranch, processing establishment, cannery, fin, packing shed or nursery, or who produces or
conditions seed, and who either recruits, solicits, hires, employs, furnishes, or transports any
migrant or seasonal agricultural worker.” 29 U.S.C. § 1802(2). The AWPA defines “migrant
agricultural worker” as “an individual who is employed in agricultural employment of a seasonal
or other temporary nature, and who is required to be absent overnight from his permanent place
of residence.” 29 U.S.C. § 1802(8)(A).

7
cert. denied, 513 U.S. 943 (1994); 29 C.F.R. § 500.20(h)(5).10 According to the AWPA

regulations,

joint employment means a condition in which a single individual stands in
the relation of an employee to two or more persons at the same time. A
determination of whether the employment is to be considered joint
employment depends upon all the facts in a particular case. If the facts
establish that two or more persons are completely disassociated with
respect to the employment of a particular employee, a joint employment
situation does not exist.

29 C.F.R. § 500.20(h)(5). The issue in joint employment cases “is not whether the worker is

more economically dependent on the independent contractor or grower, with the winner avoiding

responsibility as an employer.” Antenor, 88 F.3d at 932. Instead, the AWPA “envisions

situations where a single employee may have the necessary employment relationship with not

only one employer but simultaneously such a relationship with an employer and an independent

contractor.” Antenor, 88 F.3d at 932 (quoting H.R. Rep. No. 97-885, 97th Cong., 2d Sess.

(1982) 7, 1982 U.S.C.C.A.N. 4547, 4553).

This court, and the AWPA regulations, have considered the following regulatory factors

as guidance in determining economic dependence, and ultimately, whether an employment

relationship exists: (1) whether the agricultural employer has the power, either alone or through

the FLC, to direct, control or supervise the workers or the work performed (such control may be

10
In 1997, the Department of Labor amended the AWPA regulations, attempting to
remedy the misconceptions surrounding the definition of “joint employment.” This clarification
of joint employment focuses more closely on the “economic dependence” test that federal courts
had previously established. See Migrant and Seasonal Agricultural Worker Protection Act, 62
Fed. Reg. 11734, 11745-46 (1997) (codified at 29 C.F.R. pt. 500 (1997)). This court accords
significant weight to the statutory interpretation of the executive agency charged with
implementing the statute being construed, particularly when that interpretation is incorporated in
a formally published opinion. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844 (1984); Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1507
(11th Cir. 1993).

8
either direct or indirect, taking into account the nature of the work performed and a reasonable

degree of contract performance oversight and coordination with third parties); (2) whether the

agricultural employer has the power, either alone or in addition to another employer, directly or

indirectly, to hire or fire, modify the employment conditions, or determine the pay rates or the

methods of wage payment for the workers; (3) the degree of permanency and duration of the

relationship of the parties, in the context of the agricultural activity at issue; (4) the extent to

which the services that the workers rendered are repetitive, rote tasks requiring skills that are

acquired with relatively little training; (5) whether the activities that the workers performed are

an integral part of the overall business operation of the agricultural employer; (6) whether the

work is performed on the agricultural employer’s premises, rather than on premises that another

business entity owns or controls; and (7) whether the agricultural employer undertakes

responsibilities in relation to the workers that employers commonly perform, such as preparing

and/or making payroll records, preparing and/or issuing pay checks, paying FICA taxes,

providing workers’ compensation insurance, providing field sanitation facilities, housing or

transportation, or providing tools and equipment or materials required for the job (taking into

account the amount of the investment). See 29 C.F.R. § 500.20 (h)(5)(iv)(A)-(G); see also

Antenor, 88 F.3d at 932; Aimable, 20 F.3d at 439.

We will consider all of the enunciated factors as guidance, with “the weight of each

factor [depending] on the light it sheds on the farmworkers’ economic dependence (or lack

thereof) on the alleged employer, which in turn depends on the facts of the case.” Antenor, 88

F.3d at 932-33 (citing Aimable, 20 F.3d at 440). A determination of employment status under

the AWPA and the FLSA is a question of law subject to de novo review. See Antenor, 88 F.3d

at 929; Aimable, 20 F.3d at 440.

9
 1. Whether the appellees had the power to direct, control or supervise the
appellants (directly or indirectly).

Prior to 1997, the AWPA regulations split this factor into two concepts: first, the nature

and degree of control over the workers; and second, the degree of supervision over their work.

The district court also considered these two concepts separately. As for the nature and degree of

control of the appellants, the district court found that “there is absolutely no indication . . . that

defendants [Hall] and Little Rock retained the ‘right to dictate the manner in which the details of

the harvesting function [were] executed.’” Charles, 857 F. Supp. at 1580 (quoting Donovan v.

Brandel, 736 F.2d 1114, 1119 (6th Cir. 1984)). The district court also found that “although

defendants John and Felix Burton retained a degree of control over the harvest in that they

directed which fields would be picked, they maintained no control over the manner in which the

beans were picked. The details of the harvest were left to [Luxama].” Charles, 857 F. Supp. at

1580.

In Aimable, this court found that the focus of this concept “is more properly limited to

specific indicia of control (for example, direct employment decisions such as whom and how

many employees to hire, whom to assign to specific tasks, and how to design the employee’s

management structure).” Aimable, 20 F.3d at 440. Antenor identified several other indicia of

control, including: when work should begin on a particular day; whether a worker should be

disciplined; whether the agricultural employers were free to delay or stop the workers directly

from continuing their work; and whether the agricultural employers could assign work to

specific workers indirectly. See Antenor, 88 F.3d at 933-34. The evidence presented

demonstrated that while Little Rock supplied boxes to the Burtons to be used for the appellants,

neither Hall nor Little Rock engaged in direct or indirect control over the appellants. See, e.g.,

10
Patel v. Wargo, 803 F.2d 632, 638 (11th Cir. 1986) (finding that company’s president, director

and principal stockholder did not take a sufficiently active role to be an “employer” under the

FLSA). The Burtons, however, exhibited some control. For example, the Burtons determined

the particular fields that they wanted the appellants to cultivate, determined when the appellants

would begin picking each field and supplied appellants with boxes that Little Rock provided.

They did not, however, tell Luxama when to commence picking each day and did not determine

whether a specific worker should be disciplined. See Hodgson v. Griffin & Brand of McAllen,

Inc., 471 F.2d 235, 237 (5th Cir.) (finding that agricultural worker exercised sufficient control in

determining when the workers were to commence harvesting each day to be an “employer”

under the AWPA), cert. denied, 414 U.S. 819 (1973). Therefore, although we agree with the

district court that this aspect of the first factor weighs against finding that the appellants were

economically dependent on Hall and Little Rock, we find that the Burtons exercised some

aspects of control that weigh in favor of finding that the appellants were economically dependent

on the Burtons.

The second aspect of this factor concerns the degree of direct or indirect supervision that

the agricultural employer enjoyed over the workers. The necessary supervision under this factor

“includes overseeing the pickers’ work and providing direction,” while keeping in mind “special

aspects of agricultural employment.” Antenor. 88 F.3d at 934-35. In an agricultural setting, “the

grower is not expected to look over the shoulder of each farmworker every hour of every day.

Thus, it is well settled that supervision is present whether orders are communicated directly to

the laborer or indirectly through the contractor.” Antenor, 88 F.3d at 935 (quotations and

citations omitted). “Infrequent assertions of minimal oversight,” however, fail to satisfy the

supervision necessary under this factor. See Aimable, 20 F.3d at 441.

11
 The workers alleged, and the record reveals, that the Burtons directed Luxama to tell the

appellants to harvest certain areas of their farm and monitored their harvesting several times per

day.11 The Burtons, however, entrusted most of the direct supervision and oversight over the

appellants in Luxama. We believe that the Burtons’ supervision overcomes Aimable’s

“infrequent assertions of minimal oversight” and instead resembles Antenor’s definition of

indirect control. The workers, however, have not presented any evidence that Little Rock or Hall

directly or indirectly supervised their work in any fashion. We therefore find that this first factor

favors a conclusion that the appellants were economically dependent on the Burtons, based on

their indirect control and supervision. We also find that this factor weighs against such a

conclusion as for Little Rock and Hall.

2. Whether the appellees had the direct or indirect power to hire, fire, modify the
employment conditions or determine the pay rates or the methods of wage payment
for the appellants.

The district court also considered aspects of this factor separately. First, the appellants

argued that the appellees ultimately shared responsibility for their wages, because the appellees

controlled the amount of seeds planted and fields harvested and paid Luxama a specific price for

each box of beans harvested, and that Luxama then paid the appellants a set price for each box

that they individually harvested. The appellees rely on Rutherford Food Corp. v. McComb,

where the Supreme Court found the operator of a slaughterhouse exerted indirect influence over

the pay rates for the boners when he controlled the number of cattle slaughtered and boned. 331

U.S. 722, 730 (1947). The district court found that Aimable precluded the reliance on McComb,

11
Appellant Asseigne observed the Burtons near their worksite often, and noticed that
they talked to Luxama. See Asseigne Dep. at 31. Appellant Aubout stated that he observed the
Burtons talking to Luxama, and, since most of the appellants did not speak English, Luxama then
instructed the appellants in their native language what the Burtons needed. See Aubout Dep. at
17-18.

12
finding this “leap of logic” -- since the appellees controlled the amount of money Luxama

received, and since Luxama controlled the amount the appellants received, that the appellees

therefore controlled the amount the appellants received -- to be unfounded. See Aimable, 20

F.3d at 442 (“Unfortunately for appellants, the laws that bind the Euclidian world do not apply

with equal force in federal employment law.”); Charles, 857 F. Supp. at 1580. The appellants

presented no other convincing evidence to show that the appellees exercised direct or indirect

power to determine their pay rates or the methods of payments. In fact, Luxama controlled their

pay rates, determined how they received their pay and when they received payment.

The appellants also argue that the Burtons, on behalf of their enterprise with Hall and

Little Rock, delegated the task of assembling a picking crew to Luxama and therefore indirectly

enjoyed the rights to hire, fire or modify the employment conditions of the appellants. In

Antenor, this court found that evidence showing that the agricultural employers “dictated the

workers’ hours, a condition of employment, by deciding when the work was to begin . . . [and]

forcing the pickers to stop picking when prices were bad[,]” indicated that they enjoyed these

rights. See Antenor, 88 F.3d at 935. The Burtons planted and fertilized the snap bean crop and

directed Luxama to have the appellants harvest it on certain dates. While the Burtons did not

enjoy a “veto” power over Luxama’s hiring decisions and did not modify such employment

conditions as the picker’s daily hours, they decided ultimately when the appellants would begin

picking their snap bean crop, where they would pick it and for how long. Thus, elements of this

factor weigh in favor of the appellants being economically dependent on the Burtons. Again,

though, the appellants present no evidence that either Hall or Little Rock directly or indirectly

enjoyed this power.

3. The degree of permanency and duration of the relationship of the parties.

13
 The district court did not consider this factor, following Aimable’s holding that this

factor is irrelevant in analyzing joint employment. See Aimable, 20 F.3d at 443-44; Charles, 857

F. Supp. at 1579. The Aimable court found that this factor helped determine whether the FLC,

as opposed to any other putative agricultural employer, employed the farm workers. See

Aimable, 20 F.3d at 444. We note that the Aimable court nonetheless analyzed this factor, and,

given its inclusion in the AWPA’s regulations, feel that its analysis should provide this court

guidance in determining “the economic reality of all the circumstances concerning whether the

putative employee is economically dependent upon the alleged employer.” 29 C.F.R.

500.20(h)(5)(iv)(C); Antenor, 88 F.3d at 933.12

The appellants allege that they had an ongoing relationship with the appellees because

they spent most of their time during the 1992 snap bean harvest season working for them.

Additionally, they contend that Luxama’s relationship with the appellees was longstanding in

that he had provided workers for their snap bean harvests between 1990 and 1992. The

appellees allege, pursuant to Aimable, that the evidence showed that only Luxama, not the

12
The Department of Labor additionally commented on this issue, stating that, despite
Aimable,

the great weight of the case law supports consideration of the degree of
permanency and exclusivity in the relationship between the workers and
the putative employer in the context of the agricultural operation in
question. The duration of that operation necessarily affects the duration or
permanency of that relationship. Where an FLC and the workers are
engaged for the duration of the operation and are obligated to work only
for or be available to the agricultural employer/association at his/her
discretion during that period, that information bears directly on the
question of the workers’ economic dependence. Other courts have found
this factor relevant and the Department believes that duration of the
relationship should be one of the factors considered in determining joint
employment.

Agricultural Workers Protection Act, 62 Fed. Reg. at 11,740 (citations omitted).

14
appellees, had the ongoing relationship with the appellants. The appellees also argue that no

evidence indicated that the appellants harvested the snap bean crop in 1990 or 1991, and that the

evidence showed that some of the appellants may have worked at a different farm during the

snap bean harvest, and others may have chosen to stay home on certain days during the harvest.

Other courts have considered this issue and have found that “[h]arvesting of crops is a

seasonal industry, without much permanence beyond the harvesting season. However temporary

the relationship may be . . . the relationship is permanent . . . [if] the migrants work only for [the]

defendants during that season.” Haywood v. Barnes, 109 F.R.D. 568, 589 (E.D. N.C. 1986)

(quoting Donovan v. Gilmor, 535 F. Supp. 154, 162 (N.D. Ohio), appeal dismissed, 708 F.2d

723 (6th Cir. 1982)). Another court has found that “[o]ne indication of permanency . . . is the

fact that it is not uncommon for the migrant families to return year after year.” Secretary of

Labor v. Lauritzen, 835 F.2d 1529, 1537 (7th Cir. 1987), cert. denied, 488 U.S. 898 (1988).

Luxama and the appellants harvested snap beans on the Burtons’ farm in 1992. While this

harvest was seasonal, the Burtons expected Luxama’s crew to harvest the entire snap bean crop.

Luxama and the appellants also worked for another farm during this snap bean harvest.13 While

Luxama returned between 1990 and 1992 to harvest the Burton’s snap bean crop, the appellants

presented no evidence to show that all of them picked snap beans for the Burtons during these

dates. Therefore, we find that the appellants have failed to meet the permanency and exclusivity

factor, and this factor weighs against a determination that the appellants were economically

dependent on the appellees.

4. The extent to which the services that the appellants rendered are repetitive, rote
tasks requiring skills that are acquired with relatively little training

13
Luxama stated that at times he would send some of the appellants to pick snap beans at
a nearby farm in Tifton, Georgia. Luxama Dep. at 56.

15
 The district court also failed to consider this factor in determining that the appellees were

not joint employers of the appellants, and the Aimable court found that an analysis of this factor

fails to aid in this determination. See Aimable, 20 F.3d at 444. We, however, choose to analyze

this factor, since it is included in the AWPA’s regulations.14 It is unquestionable that the

services that the appellants rendered -- picking snap beans -- is a repetitive and rote task

requiring relatively little training. Therefore, we find that this factor weighs in favor of

concluding that the appellants were economically dependent on the appellees.

5. Whether the activities that the appellants performed are an integral part of the
appellees’ overall business operation.

This factor is “probative of joint employment because a worker who performs a routine

task that is a normal and integral phase of the grower’s production is likely to be dependent on

the grower’s overall production process.” Antenor, 88 F.3d at 937. The district court held that

this factor favored the appellants, finding that they “performed a line-job integral to the

harvesting and production of salable vegetables.” Charles, 857 F. Supp. at 1581 (quoting

Aimable, 20 F.3d at 444). While the Burtons contend that their snap bean harvest comprised a

14
The Department of Labor explained:

[C]ourts have considered the worker’s degree of skill to be a relevant and
probative factor in the determination of [economic] dependence. In
common experience in the agricultural industry and other contexts, there
is a reasonable correlation between the worker’s degree of skill and the
marketability and value of his/her services. In the free market place, an
unskilled task may easily be learned and performed by almost any worker
is a task for which many workers (both trained and untrained) can
realistically compete, and is also a task for which the competing workers
would not be able to demand or expect high wages. The lower the
worker’s skill level, the lower the value and marketability of his/her
services, and the greater the likelihood of his/her economic dependence on
the person utilizing those services.

Agricultural Worker Protection Act, 62 Fed. Reg. at 11,740-41.

16
small percentage of their overall farming operations, we find that this factor weighs in favor of

determining that the appellants were economically dependent on the Burtons, Little Rock and

Hall because the appellants’ picking of snap beans was integral to both harvesting and producing

snap beans -- the appellees’ business.

6. Whether the work is performed on the appellees’ premises, rather than on
premises that another business entity owns or controls.

This factor is probative of joint employment because “without the land, the worker might

not have work, and because a business that owns or controls the worksite will likely be able to

prevent labor law violations, even if it delegates hiring and supervisory responsibilities to labor

contractors.” Antenor, 88 F.3d at 937 (citing Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508, 513-

14 (5th Cir. 1969)). The district court correctly found that the appellants picked snap beans on

the Burtons’ property, which provides indicia that the Burtons employed the workers. The

district court also found, however, that no party presented any evidence that the appellants

performed any work on the property of either Little Rock or Hall. Thus, we find that this factor

weighs in favor of finding that the appellants were economically dependent on the Burtons, but

were not economically dependent on either Little Rock or Hall.

7. Whether the appellees undertook responsibilities in relation to the appellants
that employers commonly perform.

The district court did not consider this factor, finding that one of its considerations,

“investment in equipment and facilities,” to be irrelevant pursuant to Aimable. Aimable, 20 F.3d

at 443; Charles, 857 F. Supp. at 1579. Once again, because this factor is enunciated in the

AWPA’s regulations, and considered in Antenor, we consider it as guidance in our determination

17
of “economic dependence” and “joint employment.”15 The evidence, viewed in the light most

favorable to appellants, demonstrates that neither Little Rock, Hall nor the Burtons had any

responsibility in preparing or making payrolls, paying FICA taxes, or providing workers

compensation insurance for the appellants. Little Rock issued checks to Luxama for the number

of boxes his crew picked, but these payments were advances to the Burtons for their labor costs.

Luxama paid the appellants for the number of boxes they picked and provided housing and

transportation for the appellants. Little Rock also provided the Burtons with boxes for the

appellants to place the picked snap beans in and provided a trailer for the Burtons to transport the

snap beans to Little Rock’s packing shed. Although the appellees provided certain materials

useful in the appellants’ work, which is probative of the appellants’ economic dependence on the

appellees, the appellees did not undertake any other functions that an employer normally

performed. Thus, we find that this factor weighs in favor of determining that the appellants were

not economically dependent on the appellees.

In considering all of these factors, we realize that “no one factor is determinative,” and

that the existence of joint employment “depends on the economic reality of all the

circumstances.” Antenor, 88 F.3d at 932 (quotations and citations omitted). We note that “the

15
The Department of Labor commented:

Where a putative employer provides materials or services, undertakes
functions normally performed by an employer (such as providing workers’
compensation, paying FICA taxes, transporting or housing workers,
providing the tools and equipment necessary to the work), such behavior
indicates that it is his/her interest to perform such functions that are
commonly performed by employers rather than rely on the FLC. Further,
workers who use the services, materials or functions are in a very tangible
way economically dependent on the entity performing these functions.

Agricultural Workers Protection Act, 62 Fed. Reg. at 11,741-42.

18
absence of evidence on any one or more of the criteria listed does not preclude a finding that an .

. . agricultural employer was a joint employer along with the crewleader.” Antenor, 88 F.3d at

933 (quotations and citations omitted). We also note that since the AWPA is a remedial statute,

we must construe it broadly. See Caro-Galvan, 993 F.2d at 1505 (“AWPA is a remedial statute

and should be construed broadly to effect its humanitarian purpose.”). Based on our analysis of

the factors, we hold that the appellants were economically dependent on the Burtons, and, as a

matter of law, that the Burtons employed the appellants under the AWPA. The Burtons enjoyed

a sufficient degree of indirect supervision and control over the appellants, supplied the land and

ultimately decided when, where and how long the appellants would harvest their snap bean crop.

Further, the appellants performed services that required little training, yet were integral to the

Burtons’ farming operation. Because we hold that the Burtons employed the appellants, they are

liable as joint employers for violations of section 1841 of the AWPA. We also hold that, based

on our analysis of these factors, Little Rock and Hall did not employ the appellants within the

meaning of the AWPA.16

IV. UTILIZATION OF SERVICES

The next issue we discuss is whether the appellees “utilized” Luxama’s services. See 29

U.S.C. § 1842. According to section 1842, unless a person utilizes the services of a farm labor

contractor to supply an agricultural worker, there is no responsibility to be concerned about the

16
We note the district court’s holding that to find the Burtons joint employers under the
AWPA, “every farmer who hired a farm labor contractor would become for purposes of the
AWPA . . . a joint employer of the contractor’s employees.” Charles, 857 F. Supp. at 1581-82.
We disagree, finding that the economic reality of the facts in this case indicate that the Burtons
employed the appellants. We caution district courts to analyze each of these enunciated factors
as guidance, taking into account the facts of each case, and the economic reality of each
situation, to determine whether a farm worker is economically dependent on an agricultural
employer.

19
farm labor contractor’s certificate of registration. See 29 U.S.C. § 1842. Even though Little

Rock and Hall did not “employ” appellants, they can be liable under section 1842 because it

speaks only of a person who utilizes the services of an FLC, not an “employer.”

The district court granted Little Rock’s and Hall’s motions for summary judgment on this

issue, finding that neither Little Rock nor Hall “utilized” Luxama’s services because the Burtons

exercised the discretion to hire Luxama, and exercised subsequent control over Luxama and the

appellants. See Charles v. Burton, No. 92-150-VAL (M.D. Ga. Mar. 7, 1995).

We find that the district court did not err in granting summary judgment for Hall and

Little Rock, based on our analysis of “joint employment” and “economic dependence.” The

appellants presented no evidence that Little Rock or Hall engaged in directing, controlling or

supervising the appellants. Further, Little Rock and Hall did not hire Luxama, but instead

delegated the decision of hiring and paying for snap bean labor to the Burtons. Therefore, we

agree with the district court that neither Little Rock nor Hall “utilized” the services of Luxama

and the appellants. The Burtons however, concede that they utilized Luxama’s services. We

agree with the district court that the Burtons “utilized” the services of Luxama and the

appellants, based on this same analysis.

V. DAMAGES

Having utilized the services of appellees, there was a statutory obligation on the part of

John and Felix Burton to “first take[ ] reasonable steps to determine that the farm labor

contractor possesse[d] a certificate of registration which [was] valid and which authorize[d] the

activity for which the contractor [was] utilized.” 29 U.S.C. § 1842. The Burtons concede they

failed to determine if the farm labor contractor had a valid certificate authorizing him to

transport agricultural workers. See Burtons’ Brief in Support of Mot. for Summ. J. at 4 (“The

20
Burtons did not check to see if [Luxama] had a certificate of registration when he came to the

Burton’s farm with the Haitian crew to pick beans.”).

The district court granted the Burtons’ motion for summary judgment in part, finding that

the AWPA’s legislative history failed to adopt a position on strict liability, and finding that the

Burtons were not liable for the appellants’ actual damages because their failure to check

Luxama’s certificate of registration was “too far removed from the type of harm complained of”

to attribute actual damages to the Burtons. The district court therefore found that it should only

award statutory damages of up to $500. Charles v. Burton, No.7:92-cv-150 (M.D. Ga. Sept. 8,

1995). The district court later awarded the appellants $350 in statutory damages, finding the

Burtons’ violations to be “technically intentional.” See 29 U.S.C. 1854(c)(1); Charles v. Burton,

No. 92-150-VAL (M.D. Ga. July 26, 1996).

The district court erred by holding that the Burtons’ failure to verify Luxama’s

registration, in violation of 29 U.S.C. § 1842, was too far removed from the appellants’ injuries

to warrant actual damages under 29 U.S.C. § 1854(c). Appellants do not claim the Burtons are

responsible for the accident or their resulting physical injuries. Instead, they claim an inability to

obtain medical care and a lack of compensation for lost wages because Luxama had no insurance

coverage. Such a lack of access to insurance proceeds is an injury separate and distinguishable

from appellants’ physical injuries. See, e.g., Huff v. Standard Life Ins. Co., 897 F.2d 1072, 1074

(11th Cir. 1990) (“[T]he very essence of” a cause of action for negligent delay in the processing

of an insurance application “is that the insurance company’s negligence caused the absence of

insurance coverage, which in turn damages the applicant.”), cert. denied, 499 U.S. 936 (1991);

Michigan Abrasive Co., Inc. v. Poole, 805 F.2d 1001, 1003, 1005-06 (11th Cir. 1986). This is

true even though appellants do not claim that the Burtons’ actions caused them to be uninsured,

21
but instead claim that the Burtons’ actions precluded them from having access to insurance

coverage which another person, in this case Luxama, was required to maintain. See, e.g.,

Lippincott v. Exotica Imports, Inc., 413 So.2d 66, 67 (Fla. Dist. Ct. App. 1982) (Defendant, an

automobile dealer, sold a vehicle to a purchaser who did not have insurance coverage, dealer

failed to verify that purchaser had insurance coverage, plaintiff was involved in an automobile

accident while a passenger in purchaser’s vehicle, plaintiff sued dealer, and court held that dealer

“should be responsible to” plaintiff because it “did cause injury to [plaintiff] in that [plaintiff]

was without the protection of [insurance] benefits at the time of the accident.”). The Burtons’

failure to check Luxama’s certificate of registration was not far removed from the appellants’

inability to obtain medical care and compensation for lost wages at all.

Luxama did not possess a certificate of registration and had no insurance to cover the

damages that resulted from plaintiffs’ physical injuries. To obtain a certificate of registration,

Luxama, like any other farm labor contractor, would have had to produce documentation

showing that he had an insurance policy or liability bond which insured “against liability to

persons . . . arising from the ownership, operation, or the causing to be operated, of any vehicle

used to transport any migrant or seasonal agricultural worker.” 29 U.S.C. § 1841(b)(1)(C); see

29 U.S.C. § 1812(2).

If the Burtons had utilized a farm labor contractor with a valid certificate of registration,

there would have been insurance to cover appellants’ physical injuries. See 29 U.S.C. §§

1812(2); 1841(b)(1)(C). This uncontested fact is contrary to the district court’s decision that

“defendants’ failure to check Mr. Luxama’s certificate of registration is simply too far removed

from the type of harm complained of for actual damages to be attributable to defendants.” The

Burtons’ failure to determine whether Luxama had a valid certificate of registration was a

22
proximate cause of the appellants’ damages, not their physical injuries, but the damages that

accrued because there was no insurance to cover their medical care and lost wages.

VI. CONCLUSION

Based on the foregoing, we reverse the district court’s holding that the Burtons did not

employ the appellants, affirm the district court’s finding that neither Little Rock nor Hall

employed the appellants or utilized their services, and remand this case to the district court to

consider damages for the Burtons’ failure to ensure that the automobiles transporting the

appellants carried insurance or a liability bond, in violation of 29 U.S.C. § 1841, and to consider

damages for the Burtons’ failure to verify Luxama’s certificate of registration before utilizing his

services, in violation of 29 U.S.C. § 1842.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

23
RONEY, Senior Circuit Judge, concurring in part and dissenting in part:

In Part III of this opinion, the Court reverses the summary judgment entered in favor of

John and Felix Burton and holds that appellees did “employ” the appellants, that they were

“agricultural employers” or “joint employers” within the meaning of the AWPA and that

therefore they were statutorily required to carry insurance or a liability bond under section

1841. I respectfully dissent from that portion of the opinion.

The Court correctly identifies the regulatory factors and case law that must guide us in

determining whether an employment relationship exists. I believe that application of these

factors, however, yields the opposite result.

There are two controlling cases in this circuit involving seasonal and migrant farm

workers which apply these several factors and that guide the decision. In Aimable v. Long &

Scott Farms, 20 F.3d 434, 438 (11th Cir.), cert. denied, 513 U.S. 943 (1994), this Court held in

a suit under both the Fair Labor Standards Act (FLSA) and the Agriculture Workers Protection

Act that the “growers,” the owners and operators of the farm upon which the laborers worked

was not a joint employer with the contractor. In Antenor v. D&S Farms, 88 F.3d 925, 929

(11th Cir. 1996), involving a similar suit, we held that the growers and the labor contractor

were joint employers. At first glance, it might appear that these two cases conflict. Closer

24
examination of the facts in each of the cases reveals the substantial differences that led to

different conclusions.

What this issue boils down to then is whether the defendants are like the non-employer

growers in the Aimable case, or like the employer growers in the Antenor case. I have

constructed a chart attached hereto as an appendix showing the decision as to each regulatory

factor made in Aimable, Antenor, and by the district court and the panel in this case, and the

evidence on each point. This chart clearly shows that the defendants are more like the growers

in Aimable than like the growers in Antenor. A study of the chart will indicate that further

discussion in this part of this opinion would be redundant. I would therefore affirm, based upon

the evidence revealed in the chart, and the decision of the district court that the Burtons were

not joint employers of the plaintiffs in this case and therefore had no duty to carry insurance or

a liability bond under section 1841 of the AWPA.

I concur in the other portions of the court’s opinion.

25
APPENDIX
RE: NO. 96-9212, CHARLES V. BURTON APPLICATION OF THE FACTORS (Column 1)
INDICATING A JOINT EMPLOYMENT RELATIONSHIP

CASES, THEIR HOLDINGS AND ANALYSIS

Aimable v. Long & Antenor v. D & S Charles v. Burton Per Curiam Opinion Judge Roney’s dissent
Scott Farms, 20 Farms, 88 F.3d 925 (district court’s Charles v. Burton,
F.3d 434 (11th Cir. (11th Cir. 1996) order) No. 96-9212 (
1994) (Tjoflat, (Barkett, Carnes, Hatchett, Roney,
Birch, Henderson) Dyer) Clark) Held: Burtons were
not joint employers.
Held: Growers Held: Burtons were Held: Burtons were
were not joint Held: Growers were not joint employers joint employers.
employers. joint employers. of plaintiffs.

Nature Does not support a Supports finding of Does not support Supports finding of Does not support a
and finding of joint joint employment. finding of joint joint employment. finding of joint
degree employment. Long Growers told FLC employment. Burtons determined employment. The type
of & Scott did not how many farm Although Burtons particular fields of decisions referred to
control control number of workers to bring retained a degree of plaintiffs should by the panel are
of workers hired, did each day, determined control over harvest cultivate, when agricultural decisions
workers. not demand that precise moment in that they directed plaintiffs would relating to the harvest,
FLC hire or fire picking would begin which fields would begin picking each not worker
specific individuals, each day, were free be picked, they field, and supplied management decisions
and did not select to delay or stop maintained no plaintiffs with boxes as discussed in
specific workers to workers from control over manner that Little Rock Aimable and Antenor.
do specific jobs. continuing their in which beans were provided. Burtons The panel
Agricultural work, and had ability picked. Details of did not, however, tell acknowledges Burtons
decisions like to (and in fact did) harvest were left to Luxama when to did not make direct
deciding which assign work to Luxama. commence picking worker management
crops to harvest at a specific workers. each day and did not decisions such as when
particular time determine whether a the growers would
cannot be likened to specific worker commence picking or
“control” in AWPA should be when a worker should
sense. disciplined. be disciplined.

26
Degree Does not support a Supports a finding of Does not support a Supports finding of Does not support a
of finding of joint joint employment. finding of joint joint employment. finding of joint
supervis employment. Growers told employment. Burtons directed employment. While
ion of Although Long & workers when to Burtons maintained Luxama to tell Burtons directed
work. Scott employees begin picking, extremely limited plaintiffs to harvest Luxama to the
regularly came to distributed boxes, degree of certain areas of farm appropriate fields for
the field, they rarely and directly oversaw supervision by and monitored harvesting, the Burtons
provided direction and intervened in checking progress of harvesting several did not direct the work
to plaintiffs’ work. pickers’ work on harvest 2-3 times per times per day. of the harvest or
While Long & Scott daily basis. For day. Luxama was Burtons, however, supervise the plaintiffs
employees example, a primarily responsible entrusted most of in the field.
occasionally gave supervisor who for supervision of direct supervision Monitoring the harvest
FLC commands that worked for the workers. and oversight to several times a day is
were relayed to growers made sure Luxama. akin to the “infrequent
plaintiffs, Long & baskets were full and assertions of minimal
Scott generally left made sure no trash oversight” discussed in
supervision and was in baskets, and Aimable.
oversight to FLC. growers complained
to FLC that job was
not going fast
enough.

27
Power Does not support a Supports finding of Does not support a Does not support a Does not support a
to finding of joint joint employment. finding of joint finding of joint finding of joint
determi employment. FLC Growers’ exercise of employment. employment. employment. Luxama
ne rates alone determined some control over Luxama determined Luxama controlled controlled the rates
and plaintiffs’ wages, pickers’ pay how much, when, pay rates, determined and method of
methods which workers to evidenced by fact and the manner in how plaintiffs payment. Does not
of pay. pay on piece-rate that they deducted which plaintiffs were received their pay support a finding of
basis or hourly money for worker’s paid. Citing and when they joint employment.
basis, and when and compensation Aimable, court received payment. Luxama controlled pay
if to increase wages. insurance and social rejected contention The panel considered rates, determined how
security from that Burtons paying social plaintiffs received their
amount they paid determined pay security taxes and pay and when they
FLC per box picked because they paid providing workers received payment. We
and gave FLC a Luxama and compensation under consider paying social
separate check for plaintiffs’ pay an additional factor security taxes and
the employer and necessarily depended enunciated in the providing workers
employees’ share of on what Luxama was 1997 amendments to compensation under an
taxes. Growers paid. the AWPA, additional factor
decided which “Whether the enunciated in the 1997
insurance to buy and appellees undertook amendments to the
named themselves as responsibilities in AWPA, “Whether the
the policyholders. relation to the appellees undertook
This limited FLC’s appellants that responsibilities in
freedom to allocate employers relation to the
money he received commonly perform,” appellants that
for his services. concluding that the employers commonly
evidence perform,” and
demonstrated the conclude that the
Burtons had no evidence demonstrated
responsibility in the Burtons had no
paying, FICA taxes responsibility in
or providing workers paying, FICA taxes or
compensation providing workers
insurance for compensation
plaintiffs. insurance for
plaintiffs.

28
Right to Does not support a Supports finding of Does not support a Supports a finding of Does not support a
hire, finding of joint joint employment. finding of joint joint employment. finding of joint
fire, or employment. Long Growers had power employment. No Burtons planted and employment. No
modify & Scott never to veto FLC’s hiring evidence that fertilized the snap evidence that Burtons
employ mandated that a decisions and to Burtons had bean crop and had power to make
ment worker be hired or modify conditions authority to hire or directed Luxama to hiring or firing
conditio fired, never shifted such as hours pickers fire individual have plaintiffs decision or to modify
ns. a worker from one worked. For workers. Weather, harvest it on certain conditions such as the
pay classification to example, the growers size of beans, size dates. Burtons hours plaintiffs
another or from one monitored pickers’ and skill of crew, decided ultimately worked. The fact that
task to another, and job qualifications and acreage all when plaintiffs the Burtons planted
never dictated hours instead of relying on determined amount would begin picking and fertilized the crop
a worker was to FLC to do so when of time plaintiffs the crop, where they and directed Luxama
work. they stopped work could work. But would pick it, and to harvest it on certain
until they could within the time for how long. dates does exhibit the
verify compliance allowed by these Burtons, however, type of specific power
with new factors, Luxama did not enjoy “veto” over plaintiffs’
immigration laws. controlled the power over employment
Also, growers number of hours Luxama’s hiring conditions
dictated pickers’ plaintiffs worked, decisions and did not contemplated in
hours by deciding and decided which modify conditions Antenor and Aimable.
when work would task each would such as plaintiffs’
begin, by forcing perform. For daily hours.
pickers to stop example, not every
working when prices plaintiff actually
were bad, and by picked beans -- some
once sending other collected boxes and
picking crews into distributed tickets.
fields, causing
plaintiffs to run out
of work by noon.

29
Permane Factor irrelevant Did not discuss. Did not consider, Factors weighs Does not support a
ncy and because it following Aimable’s against finding of finding of joint
exclusiv demonstrates only holding that this joint employment. employment.
ity and that plaintiffs were factor is irrelevant to Plaintiffs (and Plaintiffs (and
duration employees of FLC, determine joint Luxama) worked for Luxama) worked for
of not whether they employment status. another farm during another farm during
employ- were also snap bean harvest. snap bean harvest.
ment. employees of Long Although Luxama Although Luxama
& Scott: (1) the fact returned to Burtons’ returned to Burtons’
that FLC worked for farm three years, farm three years,
Long & Scott for plaintiffs did not plaintiffs did not
many years has no present evidence that present evidence that
bearing on whether they returned all they returned all three
plaintiffs were three years. (Despite years. Need to
employed jointly by Aimable’s holding address this factor
Long & Scott, and that this factor is because it is listed in
(2) plaintiffs worked irrelevant, Judge the 1997 amendments
exclusively for FLC Hatchett considered to AWPA regulations.
during harvest this factor because it
seasons at Long & is listed in the 1997
Scott’s farms and amendments to
other farms. AWPA regulations.)

Degree Factor not relevant Did not discuss. Did not consider, Weighs in favor of Irrelevant to this
of skill because it shows following Aimable’s finding of “economic analysis because it
required only that crop holding that this dependence.” supports finding of
to pickers were factor is irrelevant in Picking beans is a economic dependence,
perform employees, not who analyzing joint repetitive, rote task but does not address
the job. employed them. employment. requiring little issue of joint
training. (Despite employment.
Aimable’s holding
that factor irrelevant,
Judge Hatchett
considered this
factor because it is
listed in the 1997
amendments to
AWPA regulations.)

30
Perfor Favors finding of Favors finding of Favors finding of Favors finding of Supports finding of
m-ance joint employment joint employment joint employment joint employment joint employment
of a because crop- because picking was because plaintiffs because picking snap because picking snap
specialt picking was “a line- line job integral to performed a line-job beans was integral to beans was integral to
y job job integral to the growers’ overall integral to the both harvesting and both harvesting and
integral harvesting and production process. harvesting and producing snap producing snap beans,
to production of production of salable beans, which is the which is the Burtons’
business salable vegetables.” vegetables. Burtons’ business. business.
.

Owners Favors finding of Favors finding of Favors finding of Favors finding of Supports finding of
hip of joint employment employment because joint employment. joint employment joint employment
facilities because crop- pickers worked on No dispute that the because Burtons because Burtons
where pickers worked on land owned by work was performed owned property owned property where
work land owned by Long growers. on the Burtons’ where crops were crops were grown.
occurred & Scott. farm. grown.
.

Preparat Does not support Supports finding of Does not favor Does not support Does not support
ion of finding of joint joint employment. finding of joint finding of joint finding of joint
payroll employment. FLC Growers computed employment. employment. employment. Burtons
and was responsible for and segregated social Luxama paid wages. Burtons had no had no responsibility
payment calculating security taxes and Neither Luxama nor responsibility in in preparing or making
of plaintiffs’ wages purchased worker’s the Burtons prepared preparing or making payrolls, paying FICA
wages. and paying wages. compensation a payroll. payrolls, paying taxes, or providing
insurance. FICA taxes, or worker’s
providing worker’s compensation
compensation insurance.
insurance.

31
Investm Irrelevant. Shows Supports finding of Did not consider, Does not support Irrelevant to this
ent in that plaintiffs were joint employment. following Aimable’s finding of joint analysis because it
equip- employees, not Growers owned holding that this employment. JWH supports a finding of
ment independent virtually all factor is not relevant considered this economic dependence,
and contractors, because equipment and to analysis of joint factor together with but does not address
facilities they had little or no facilities used by employment. the “preparation of issue of joint
. investment in farm workers: payroll ...” factor employment.
equipment. It does picking boxes, lids above (in accordance
not show who and wires used to with AWPA
employed them, close them, pallets regulations, he
however, because on which boxes considered both
Long & Scott and placed, and trucks factors under the
FLC made used to transport collective heading,
significant boxes to “Whether the
investments in packinghouse. FLC appellees undertook
equipment and had no equipment or responsibilities in
facilities (for vehicles of his own. relation to the
example, FLC appellants that
invested in trucks, employers
tools, and a labor commonly
camp where pickers perform”),and
lived while Long & concluded that
Scott invested in although Little Rock
mule train, crates, provided boxes and a
and facilities). trailer for the
Burtons to use, and
“[a]lthough the
appellees provided
certain materials
useful in the
appellants’ work, . . .
the appellees did not
undertake any other
functions that an
employer normally
performed.”)

32
Opportu Irrelevant. Did not discuss. Did not consider, Did not discuss. Need not consider as it
nity for Plaintiffs had no following Aimable’s does not aid the joint
profit opportunity for holding that this employment analysis.
and loss. profit or loss. factor does not aid
Although this shows the analysis of joint
that plaintiffs were employment.
not independent
contractors, it does
not show who their
employer was.

33