United States Court of Appeals
For the Eighth Circuit
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No. 20-2600
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David Bills
lllllllllllllllllllllPlaintiff - Appellant
v.
Cactus Family Farms, LLC; CRE Holdings, LLLP; SMG Management, LLC;
Cactus Operating, LLC
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Northern District of Iowa - Central
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Submitted: April 15, 2021
Filed: July 15, 2021
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Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.
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WOLLMAN, Circuit Judge.
David Bills appeals the district court’s1 grant of summary judgment in favor of
Cactus Family Farms, LLC (Cactus or Cactus Farms). Bills claims that Cactus
violated the overtime provisions of the Fair Labor Standards Act (FLSA). See 29
U.S.C. § 207(a)(1). Cactus contends that Bills is an “employee employed in
agriculture” and therefore exempt under 29 U.S.C. § 213(a)(6). We affirm.
Background
Cactus Farms is a pork production company headquartered in Amarillo, Texas,
with its pork operations based in Osceola, Iowa. Cactus breeds pigs at its own
facilities (sow farms) and then raises the pigs through a multi-site production model.
When the piglets are three weeks old, they are transported by truck from Cactus’s sow
farms to either a nursery or a wean-to-finish farm. Piglets sent to nursery farms are
later transported by truck from the nursery to finishing farms, where they remain until
they reach target market weight. Piglets sent directly to wean-to-finish farms remain
there until they reach target market weight. When pigs reach their target market
weight, they are loaded onto a truck and transported to a processing plant for
slaughter and processing.
Cactus retains title to the pigs until they are delivered to a processing plant.
The nurseries, wean-to-finish farms, and finishing farms are owned and operated by
either Cactus or an independent contractor (independent contract grower). If the pigs
are delivered to an independent contract grower farm, the independent contract
grower is responsible for raising them until they are ready for transport. Independent
contract growers are responsible for loading the pigs from their farms onto trucks.
Once loaded, the pigs are transported either to another farm or to a third-party-owned-
and-operated processing plant.
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
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Utilizing multiple sites throughout the pigs’ life cycles reduces the risk of their
becoming ill and also addresses key biosecurity protocols. Ensuring that animals are
properly loaded for transport also protects biosecurity interests. Their becoming
overly excited or stressed during loading affects the welfare of both the pigs on the
truck and those left on the farm. The parties agree that stress and excitement during
loading for processing also affects the quality of the meat.
In his role as Animal Care Auditor for Cactus, Bills spent 80% of his time
conducting load assessments. Bills’s job during a load assessment was to assess and
observe the truckers, trucks, and load crews to make sure that proper biosecurity and
safety protocols were being followed and to ensure that the animals were not abused.
Bills assessed the loading chute’s placement, the adequacy of the air pressure and
lighting, and the overall loading conditions. Specifically, Bills inspected the chute
and facilities for sharp objects, angles, or broken gates that could injure the animals
during loading; ensured that the crew was large enough to handle loading without
additional hardship to the animals; and monitored the crew’s use of electric shock
prods. Bills also assessed other conditions, such as the crew’s vocalization, the pigs’
loading order and spacing, and the employees’ attitudes—all of which can stress,
excite, or otherwise affect the temperament of the pigs.
The parties agree that, although Bills conducted some load assessments of pigs
being moved from sow farms or from nurseries, the majority of his load assessments
were conducted at independent contract growers’ finishing farms while pigs were
being loaded for transport to processing plants. Bills worked for and reported back
to Cactus Farms but possessed the authority to, and at times did, intervene in the
independent contract growers’ loading process. The issue on appeal is whether these
load assessments constitute “agriculture” within the meaning of the FLSA.
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Analysis
We review the district court’s grant of summary judgment de novo, viewing the
genuinely disputed facts and drawing all reasonable inferences in Bills’s favor.
Young-Losee v. Graphic Packaging Int’l, Inc., 631 F.3d 909, 911 (8th Cir. 2011).
Section 3(f) of the FLSA provides, in relevant part:
“Agriculture” includes farming in all its branches [including] . . . the
raising of livestock, . . . and any practices . . . performed by a farmer or
on a farm as an 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). This definition “includes farming in both a primary and a
secondary sense.” Bayside Enters., Inc. v. N.L.R.B., 429 U.S. 298, 300 (1977). Bills
contends that the district court erred in concluding that he was employed in both
primary and secondary agriculture and therefore an exempt employee.2 See 29 U.S.C.
§ 213(a)(6).
Secondary agriculture encompasses “any practices . . . performed by a farmer
or on a farm as an 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.” Holly Farms Corp. v. N.L.R.B., 517 U.S. 392, 398 (1996)
(alteration in original) (quoting 29 U.S.C. § 203(f)). It is undisputed that Bills was
not a farmer. Id. at 400 (“When an integrated poultry producer contracts with
independent growers for the care and feeding of its chicks, its status as a farmer
2
As set forth below, we conclude that Bills was employed in secondary
agriculture. Accordingly, we do not reach the question of whether he was employed
in the raising of livestock, i.e., primary agriculture. See 29 U.S.C. § 203(f); Bayside
Enters., 429 U.S. at 300–01.
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engaged in raising poultry ends with respect to those chicks.” (cleaned up)); see also
Bayside Enters., 429 U.S. at 303 (employee’s “farmer” status “is determined by the
character of the work which [he] perform[s] for [his] own employer”). It is also
undisputed that his load assessments were conducted on a farm. Thus, the only
question we must resolve is whether Bills’s load assessments were “an incident to or
in conjunction with such farming operations.” 29 U.S.C. § 203(f).
The agricultural exemption was intended to “embrace the whole field of
agriculture.” Maneja v. Waialua Agric. Co., 349 U.S. 254, 260 (1955). Congress
specifically added the words “or on a farm” to 29 U.S.C. § 203(f) to address the
concern expressed by some members of the Senate that the exemption would not
otherwise cover “the threshing of wheat or other functions necessary to the farmer if
those functions were not performed by the farmer and his hands, but by separate
companies organized for and devoted solely to that particular job.” Farmers
Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 767 (1949). Whether on-the-
farm practices are “an incident to or in conjunction with such farming operations” is
necessarily a fact intensive inquiry. See 29 C.F.R. § 780.144 (2020) (“The line . . . is
not susceptible of precise definition.”); id. § 780.145 (2020) (a practice’s character
“must be determined by examination and evaluation of all the relevant facts and
circumstances in the light of the pertinent language and intent of the Act”).
The Supreme Court determined in Holly Farms that on-the-farm work was not
secondary agriculture when the work was reasonably “not incidental to farming
operations.”3 517 U.S. at 401. Holly Farms hatched chickens and, while retaining
title thereto, contracted with independent growers to raise the chickens on
3
The Court was reviewing a National Labor Relations Board decision and the
Board’s determination that the work in question was excluded from the statutory
definition of agriculture. 517 U.S. at 401; id. at 409 (stressing that review was
limited to whether Board’s interpretation was a reasonable one).
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independent grower farms. When the chickens were grown, Holly Farms sent its live-
haul crews to catch and transport them to Holly Farms’ processing facilities for
slaughter and processing. Live-haul crews began and ended their shifts at Holly
Farms’ processing plants, were “functionally integrated with other processing-plant
employees,” and were described as “the first step in the producer’s processing
operations.” Id. at 404. Holly Farms argued that because the work in question
(catching and transporting chickens) took place on the independent grower farms, the
live-haul crews were engaged in secondary agriculture. Id. at 401. The Court
concluded, however, that the facts reasonably supported the conclusion that the work
was “tied to Holly Farms’ slaughtering and processing operations” rather than to the
farm’s poultry-raising operations. Id. The Court noted that there was “minimal
overlap between the work of the live-haul crew and the independent growers’ raising
activities.” Id. at 403. The contractual raising obligations of the independent growers
were completed before the live-haul crew arrived, and the growers were not involved
in the loading process. Id.
Bills argues that, like the live-haul crew in Holly Farms, his work was not
“incident to or in conjunction with” the independent contract growers’ farming
operations. We disagree. Like Holly Farms, Cactus Farms retains title to the pigs
while contracting with independent contract growers to raise the pigs to target market
weight. Unlike Holly Farms, however, Cactus Farms does not own the processing
plants and it relinquishes title to the animals when the pigs are delivered to the
processing plant. Similar to the live-haul crews, Bills was employed by Cactus Farms
but conducted load assessments on the independent contract growers’ farms. Unlike
in Holly Farms, however, Bills’s work occurred during the independent contract
growers’ ongoing contractual obligation to raise the pigs, which included loading the
pigs onto trucks for transport off the farm. By preventing animal abuse and
monitoring factors affecting the pigs’ temperament, Bills’s load assessments
contributed to the welfare of the pigs being loaded, as well as that of those remaining
on the farm. We thus find no genuine dispute of material fact whether Bills’s load
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assessments were incident to anything other than the independent contract growers’
pig-raising operations and conclude as a matter of law that he was employed in
secondary agriculture.
Bills argues that his load assessments were not “an incident to or in conjunction
with” the independent contract growers’ farming operation because his work fails to
meet the three-part test laid out in Department of Labor regulation 29 C.F.R.
§ 780.144 (2020). Section 780.144 provides that an activity is generally “within the
statutory language [of 29 U.S.C. § 203(f)] only if it constitutes an established part of
agriculture, is subordinate to the farming operations involved, and does not amount
to an independent business.” Specifically, Bills argues that he was not subordinate
to the independent contract growers because he was hired and contracted by Cactus
Farms rather than by the farmers. See id.; see also id. § 780.129 (on-the-farm
activities must be performed “in connection with farming operations conducted on
the farm where the practice is performed”). Bills fails to address 29 C.F.R. § 780.145
(2020), which states that “mechanical application of isolated factors or tests” does not
control the determination of whether an on-the-farm activity is “part of the
agricultural activity,” however. See id. (“Rather, the total situation will control.”).
Regardless, as we have already explained, Bills’s work was simultaneous to
and concomitant with the independent contract growers’ loading processes during
their ongoing pig-raising obligations, and so the statutory language unambiguously
applies here. Thus, the regulations’ interpretation of the statute is not controlling.
See N. Nat. Gas Co. v. O’Malley, 277 F.2d 128, 134 (8th Cir. 1960) (“The primary
function of a regulation is to interpret an ambiguous statute and clarify its meaning.
If the statute is unambiguous, there is no room for construction.”).
We find unpersuasive Bills’s argument that his on-the-farm activities are not
within the statutory language because they benefitted Cactus Farms’ interests rather
than the farmer’s interests. Unlike in Holly Farms, Bills’s tasks were performed
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while the independent contract growers were still raising the pigs for Cactus Farms.
See 517 U.S. at 408 (finding that the live-haul crew’s work was not “for” the farmer
because the farmer had neither title to nor responsibility for the chickens while the
live-haul crew worked (applying 29 C.F.R. § 780.143 (1995))). Bills’s load
assessments furthered the independent contract growers’ enterprise by ensuring the
pigs’ continued welfare during the loading process. Both Bills’s load assessments
and the independent contract growers’ feeding and watering of the pigs throughout
their lifetime served the same purpose, that of ensuring the quality and quantity of
Cactus Farms’ animals when delivered to the processing plant. We therefore disagree
with the argument that Bills’s load assessments were unconnected to the independent
contract growers’ farming operations simply because they also served his employer’s
interests.
Conclusion
We conclude that Bills’s load assessments were on-the-farm practices “incident
to or in conjunction with such farming operations” regardless of whether the
assessment was for the transportation of pigs between farms or for their transportation
from a farm to processing. See Holly Farms, 517 U.S. at 398 (secondary agriculture
“includ[es] preparation for market, delivery to storage or to market or to carriers for
transportation to market” (quoting 29 U.S.C. § 203(f))).
As discussed above, in modern, multi-site pork production operations, pigs are
loaded onto trucks for transport at least twice during their lifetimes. Bills’s load
assessments ensured that that process was conducted safely, in compliance with
protocols, and without abuse to the animals. Thus, despite the fact that a farmer
loading his own pigs may not have needed someone to conduct load assessments,
Bills’s load assessments are an accepted part of modern pork production. See
Farmers Reservoir, 337 U.S. at 760–62 (agriculture is defined with reference to the
particulars of an industry, not according to the traditional understanding of farming).
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The grant of summary judgment is affirmed.
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