Antenor v. D & S Farms

United States Court of Appeals,

Eleventh Circuit.

No. 95-4292.

Immacula ANTENOR, et al., Plaintiffs-Appellants,

Ysnel OSNEL, Plaintiff,

v.

D & S FARMS; Iori Farms, Inc.; Virgil S. Gil Turke, a/k/a
Virgil Banciu; AG-Tech Services, Inc., Defendants-Appellees.

July 19, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 90-868-CIV-DLG), Donald L. Graham, Judge.

Before CARNES and BARKETT, Circuit Judges, and DYER, Senior Circuit
Judge.

BARKETT, Circuit Judge:

Immacula Antenor and 610 other seasonal agricultural workers

("farmworkers" or "pickers") appeal from a summary judgment in

favor of D & S Farms and Iori Farms, Inc. ("growers") on their

claims under the Migrant and Seasonal Agricultural Worker
1
Protection Act and the Fair Labor Standards Act. The district

court granted the judgment after concluding that the farmworkers

presented insufficient evidence that they were "employed" by the

growers under these statutes. Upon de novo review of the record,

we find substantial evidence that the growers, along with a labor

contractor, were "joint employers" of the farmworkers.

Accordingly, we reverse the summary judgment and remand for

proceedings consistent with this opinion.

1
See Migrant and Seasonal Agricultural Worker Protection
Act, 29 U.S.C. §§ 1801-72 (1994); Fair Labor Standards Act, 29
U.S.C. §§ 201-19 (1994).
 I. FACTUAL BACKGROUND

The facts relevant to the existence of an employment

relationship between the growers and pickers can be summarized as

follows.2 In the mid-1980s, the growers began producing snap beans

for fresh market sale. In search of a steady supply of labor to

pick the beans, the growers turned to Virgil Turke, owner and

operator of Ag-Tech Services, Inc. ("Ag-Tech"), a labor contracting

business. The growers and Turke agreed that he would assume

responsibility for hiring, furnishing and paying the pickers, and

that he would be paid $3.90 per box of beans. The farmworkers were

among the people hired by Turke to pick the growers' crops between

1986 and 1989.

Based on planting schedules and market demand, the growers

decided when to harvest a particular bean field. After selecting

a field, they told Turke its location and the number of workers

needed. Turke then arranged for subcontractors to recruit and hire

pickers. After arriving at a field, the pickers were assigned rows

by Turke and his subcontractors. They could not begin picking,

however, until the growers and their onsite foremen gave the

command to start work, because it was essential, for commercial

reasons, that picking not begin until the morning dew had lifted

from the beans. The pickers filled the boxes that were brought to

the field by the growers and distributed by Turke and the

subcontractors. As the pickers filled the initial allotment of

2
Because we are reviewing a summary judgment in the growers'
favor, we view the evidence and all reasonable inferences
therefrom in the light most favorable to the farmworkers. Parks
v. City of Warner Robins, GA, 43 F.3d 609, 612-13 (11th
Cir.1995).
boxes, they walked to the growers' field trucks, where one of the

growers' employees gave them additional boxes.

Two sets of supervisors, also known as "field walkers,"

oversaw the pickers' work. One set was hired by Turke and the

other set was hired by the growers. Both sets of field walkers

passed through the rows of beans, checking the work of individual

pickers and, when work was found to be deficient, spoke directly to

the picker to ensure that corrective steps were taken; the

growers' field walkers also complained about deficient work to

Turke and his subcontractors.

The subcontractors' assistants carried full boxes to the

growers' trucks, where they were weighed and closed by the

subcontractors or their assistants. The growers' field walkers

then loaded the boxes on trucks and drove them to the growers'

packing facility. As the day progressed, more and more of the

growers' field walkers' time was absorbed in stacking and loading

boxes, with a corresponding decrease in the time devoted to

supervision of individual bean pickers.

Work normally concluded when the pickers completed the rows

assigned to Turke by the growers. On some occasions, however, the

growers decided the crew would work longer or shorter hours,

depending on their harvest needs. If the growers decided, for

example, to halt picking to avoid overloading their packing and

storage facilities, their field walkers went to the field and

removed the picking buckets from the pickers' hands.

The growers' payment to Turke was based on the number of boxes

of beans delivered to the packinghouse. Although the price was to
be $3.90 per box, the actual payment was less. Because Turke was

financially unable to purchase worker's compensation insurance for

the farmworkers, the growers withheld 11¢ per box from his

compensation to purchase a worker's compensation policy, which

named the growers as the insured parties and employers of the

farmworkers. The growers also computed social security taxes due

on the workers and issued Turke two checks—one for the taxes and

another for the agreed upon price per box less the social security

taxes and the 11¢ per box for worker's compensation insurance.

From his payment, Turke paid the subcontractors a set amount for

each box picked by their workers, which varied depending on whether

the subcontractor provided transportation to the farmworkers. The

subcontractors then paid the farmworkers their wages.

II. PROCEDURAL BACKGROUND

The farmworkers filed suit against the growers, Turke and Ag-

Tech under the Migrant and Seasonal Agricultural Worker Protection

Act, 29 U.S.C. §§ 1801-72 (1994) ("AWPA"), and the Fair Labor
3
Standards Act, 29 U.S.C. §§ 201-19 (1994) ("FLSA"). Their

complaint alleged that the growers, Turke and Ag-Tech violated the

AWPA by failing to keep hourly records, to pay unemployment

compensation and social security taxes, and to pay wages promptly

when due, id. §§ 1831(c)(1), (2) & 1832(a), (c). The farmworkers

alleged that the growers also violated the AWPA by using labor

3
We use the abbreviation "AWPA" to refer to the Migrant and
Seasonal Agricultural Worker Protection Act. The Act is also
occasionally referred to as the "MSPA" or the "MSAWPA." We
employ "AWPA" because it is the acronym utilized by the United
States Supreme Court in its only opinion interpreting the Act.
Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 640, 110 S.Ct.
1384, 1386, 108 L.Ed.2d 585 (1990).
contractors to recruit and transport them without reasonably

ensuring that the contractors were registered and insured, id. §§

1841(b)(1)(C) & 1842. The farmworkers claimed that defendants

violated the FLSA by failing to keep hourly records and pay minimum

wage, id. §§ 206(a), 211(c). Defaults were entered against Turke

and Ag-Tech for failure to file responsive pleadings.

Following discovery, the parties filed cross motions for

summary judgment on the growers' liability under the FLSA and the

AWPA. The farmworkers argued that the growers were liable because

they, along with Turke and Ag-Tech, were "joint employers" of the

farmworkers. The growers contended that they were not liable

because Turke was the farmworkers' sole employer. The district

court granted summary judgment to the growers and denied summary

judgment to the farmworkers, finding that there were no genuine

issues of material fact and that the growers were entitled to

judgment as a matter of law. See Antenor v. D & S Farms, Inc., 866

F.Supp. 1389 (S.D.Fla.1994).

III. DISCUSSION

A determination of employment status under the FLSA and the

AWPA is a question of law subject to our de novo review. Aimable

v. Long & Scott Farms, Inc., 20 F.3d 434, 440 (11th Cir.), cert.

denied, --- U.S. ----, 115 S.Ct. 351, 130 L.Ed.2d 306 (1994).

Because we are reviewing a summary judgment in favor of the

growers, we must determine whether there are genuine issues of

material fact and, if not, whether the growers are entitled to

judgment on the question of joint employment as a matter of law;

stated differently, we must determine whether the evidence and all
reasonable inferences therefrom, viewed in the light most favorable

to the pickers, support a reasonable conclusion that they were

employed by the growers for purposes of the AWPA and the FLSA. See

Parks v. City of Warner Robins, GA, 43 F.3d 609, 612-13 (11th

Cir.1995). To do this, we initially consider the statutory

definition of "employ" under the FLSA and AWPA and their

legislative history.

A. Statutory Background

The FLSA was enacted in 1938 in order to eliminate "labor

conditions detrimental to the maintenance of the minimum standard

of living necessary for health, efficiency, and general well-being

of workers...." 29 U.S.C. § 202(a), (b). It requires that

employers, among other things, keep payroll records and pay

employees a minimum hourly wage and overtime. Id. §§ 201-11. The

AWPA, enacted in 1983, was intended "to assure necessary

protections for migrant and seasonal agricultural workers...." Id.

§ 1801. Among its provisions, the AWPA requires agricultural

employers to register with the government, maintain employment

records for workers, and comply with various compensation, housing

and transportation provisions. Id. §§ 1811-44.

The growers' liability under the FLSA and the AWPA depends on

whether they "employed" the farmworkers furnished by Turke. See

id. § 203(d), (e)(1); id. § 1802(2). Both statutes utilize the

same definition of "employ," so if the growers employed the

farmworkers under one statute, they necessarily employed them under

the other. Aimable, 20 F.3d at 440. In defining "employment"

under both statutes, Congress expressly rejected the common-law
definition of employment, which is based on limiting concepts of

control and supervision. See Walling v. Portland Terminal Co., 330

U.S. 148, 150-51, 67 S.Ct. 639, 640-41, 91 L.Ed. 809 (1947);

Aimable, 20 F.3d at 439.4 Rather, an entity "employs" a person

under the FLSA and the AWPA if it "suffers or permits" the
5
individual to work. 29 U.S.C. § 203(g); id. § 1802(5). An

entity "suffers or permits" an individual to work if, as a matter

of economic reality, the individual is dependent on the entity.

Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33, 81

S.Ct. 933, 936-37, 6 L.Ed.2d 100 (1961); Aimable, 20 F.3d at 439.

To assure protection for workers, both statutory schemes make

it clear that a worker can be economically dependent on, and thus

jointly employed by, more than one entity at the same time. See 29

C.F.R. § 791.2; id. § 500.20(h)(4). Thus, the AWPA and the FLSA

specifically cover "joint employment" relationships. The AWPA

regulations define "joint employment" as follows:

The term 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

4
See also H.R.Rep. No. 97-885, 97th Cong., 2d Sess. (1982)
6-8 reprinted in 1982 U.S.C.C.A.N. 4547, 4552-54 (declaring
intent that terms "employee," "employer" and "independent
contractor" used in AWPA "not be construed in their limited
common law sense").
5
The "suffer or permit to work" standard derives from state
child-labor laws designed to reach businesses that used middlemen
to illegally hire and supervise children. Rutherford Food Corp.
v. McComb, 331 U.S. 722, 728 n. 7, 67 S.Ct. 1473, 1476 n. 7, 91
L.Ed. 1772 (1947); People ex rel. Price v. Sheffield Farms-
Slawson-Decker Co., 225 N.Y. 25, 121 N.E. 474, 476 (1918). It
has been called " "the broadest definition [of employee] that has
ever been included in one act.' " United States v. Rosenwasser,
323 U.S. 360, 363 n. 3, 65 S.Ct. 295, 297 n. 3, 89 L.Ed. 301
(1945) (quoting 81 Cong.Rec. 7,657 (1938) (statement of Sen. Hugo
Black)).
 employment is to be considered joint employment depends upon
all the facts in the 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.

Id. § 500.20(h)(4)(i); see also id. § 791.2.6

The AWPA's adoption of the FLSA definition of employment "was

6
The regulations also provide a means for the Secretary of
Labor to determine whether a joint employment relationship
exists:

Questions will often arise under the Act as to
whether individuals employed by a farm labor contractor
are also jointly employed by another person engaged in
agriculture (including any person defined in the Act as
an agricultural employer or an agricultural
association). Such joint employment relationships are
common in agriculture and have often been addressed by
the Federal courts. See ... Hodgson v. Griffin and
Brand, 471 F.2d 235 [ (5th Cir.1973) ], ... Rutherford
Food Corporation v. McComb, 331 U.S. 722, 67 S.Ct.
1473, 91 L.Ed. 1772 [ (1947) ], ... and Usery v.
Pilgrim Equipment Company, Inc., 527 F.2d 1308 [ (5th
Cir.1976) ]. In determining whether such a joint
employment relation exists the courts have cited the
broad definition of employ in the [FLSA] which includes
to suffer or permit to work. The factors considered
significant by the courts in these cases and to be used
as guidance by the Secretary, include, but are not
limited to, the following:

(A) The nature and degree of control of the
workers;

(B) The degree of supervision, direct or indirect,
of the work;

(C) The power to determine the pay rates or the
methods of payment of the workers;

(D) The right, directly or indirectly, to hire,
fire, or modify the employment conditions of the
workers;

(E) Preparation of payroll and the payment of
wages.

29 C.F.R. § 500.20(h)(4)(ii); see also id. § 791.2 (1992)
(defining "joint employment" under FLSA).
deliberate and done with the clear intent of adopting the "joint

employer' doctrine as a central foundation of this new statute; it

is the indivisible hinge between certain important duties imposed

for the protection of migrant and seasonal workers and those liable

for any breach of these duties." H.R.Rep. No. 97-885, 97th Cong.,

2d Sess. (1982) 6, reprinted in 1982 U.S.C.C.A.N. 4547, 4552

("House Report"). Previous legislative efforts to protect

farmworkers had focused on regulating the crewleaders who

recruited, managed and paid the farmworkers. Id. at 4547-48.

Those efforts, however, had failed to "reverse the historical

pattern of abuse of migrant and seasonal farmworkers," id. at 4549,

primarily because crew leaders were transient and often insolvent,

id. at 4548. Thus, in designing the AWPA, Congress took "a

completely new approach," id. at 4549, making agricultural entities

directly responsible for farmworkers who, as a matter of economic

reality, depended upon them, even if the workers were hired or

employed by a middleman or independent contractor, id. at 4553-54.

Although the AWPA places responsibilities on farm labor contractors

as well as on agricultural employers, see 29 U.S.C. §§ 1811-44,

"Congress' plain intent was to protect migrant and seasonal workers

from abuse and exploitation, and to hold "agricultural employers'

fully accountable as joint employers whenever the facts suggest

that liability is fairly imposed." Maldonado v. Lucca, 629 F.Supp.

483, 489 (D.N.J.1986).

B. Applicable Caselaw

In addition to the legislation, we are guided by a Supreme

Court case and three Eleventh Circuit cases that have addressed the
statutory definition of employment based upon economic dependence.

In Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91

L.Ed. 1772 (1947), the Secretary of Labor sued a slaughterhouse

operator for FLSA violations arising from its treatment of

"boners," who deboned meat. Id. at 723-24, 67 S.Ct. at 1473-74.

The operator asserted that it did not "employ" the boners because

they were recruited, hired and supervised by a labor contractor

who, according to a contract with the operator, was to have

"complete control" over the boners. Id. at 724-25, 67 S.Ct. at

1474. The Supreme Court held that the "determination of the

relationship does not depend on such isolated factors but rather

upon the circumstances of the whole activity." Id. at 730, 67

S.Ct. at 1477. In determining whether the operator suffered or

permitted the boners to work, the Court emphasized that the boners

were "part of the integrated unit of production," id. at 729, 67

S.Ct. at 1476, because the deboning occurred in the middle of the

process of slaughtering the cattle, preparing the meat for

deboning, packing it and shipping it, all of which was performed by

slaughterhouse employees, id. at 726, 67 S.Ct. at 1475. The Court

also noted that the slaughterhouse, and not the contractor, owned

the premises and deboning equipment, and that the work, though

skilled, "was more like piecework." Id. at 730, 67 S.Ct. at 1477.

"Upon the whole," the Court determined that the slaughterhouse

employed the deboners for purposes of the FLSA. Id. at 730, 67

S.Ct. at 1477.
 A year later the former Fifth Circuit7 decided Fahs v. Tree-

Gold Co-operative Growers of Florida, Inc., 166 F.2d 40 (5th

Cir.1948).8 A citrus-packinghouse operator employed labor

contractors to furnish workers to assemble, label, close and load

the boxes in which the citrus fruit was packed. Id. at 42-43. The

labor contractors were responsible for hiring, firing and

supervising their crew members, and establishing their hours and

wages. Id. at 43. The contractors, who were paid based on the

number of boxes handled by their workers, paid their own crew

workers. Id. The packinghouse operator maintained worker's

compensation insurance to cover the workers. Id. at 42. The court

concluded that the crew workers, as well as the contractors, were

sufficiently dependent on the packinghouse to be considered its

employees. Id. at 43-45. Looking beyond the formalities of who

paid and supervised the workers, the court emphasized that the

contractors and crewmembers' services "constituted a part of an

integrated economic unit" controlled by the packinghouse operator;

that the premises and all significant investment in tools and

facilities were provided by the packinghouse; and that although

the packinghouse did not directly control the workers, it asserted

control whenever its interests were involved. Id. at 44-45.

In Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235

7
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981), we held that all decisions of the former Fifth Circuit
handed down before October 1, 1981, are binding in this court.
8
Although Fahs was a social security case, it is relevant
because it was decided at a time when employment relationships
for social security purposes were analyzed under the same legal
test as the FLSA. See Bartels v. Birmingham, 332 U.S. 126, 130,
67 S.Ct. 1547, 1549-50, 91 L.Ed. 1947 (1947).
(5th Cir.), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51

(1973), the Secretary of Labor sued a grower for FLSA violations

related to its use of harvest workers supplied by labor

contractors. Id. at 235-36. The growers argued that the labor

contractors were the harvest workers' sole employers. Id. at 237.

The evidence showed that the contractors hired the pickers, drove

them to the fields, directly supervised them and paid them their

earnings. Id. at 236-37. The evidence also showed, however, that

the work occurred on the grower's premises and that the grower's

foreman decided daily starting times, made field assignments,

oversaw the work, told contractors of problems with the workers'

performances and what to pay the workers, and assisted the labor

contractors in paying social security taxes. Id. at 236-37.

Whether the grower was a joint employer of harvest workers, the

court explained, "does not depend on technical or isolated factors"

or on "the form of the relationship," id. at 237 (quotation

omitted); instead, "it depends ... on the economic reality" of the

"circumstances of the whole activity," id. Given the "total work

arrangement," the court determined that the grower, along with the

contractors, jointly employed the workers and thus was subject to

the FLSA. Id. at 238. In enacting the AWPA, Congress expressly

recognized that Griffin & Brand "summarizes the proper approach and

the appropriate criteria to be used in making [joint employer]

determinations." See House Report at 4553.

We most recently considered agricultural joint employment

relationships in Aimable v. Long & Scott Farms, Inc., 20 F.3d 434

(11th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 351, 130
L.Ed.2d 306 (1994), which involved claims under both the AWPA and

the FLSA. A group of migrant and seasonal agricultural workers

sued a farm labor contractor and the grower on whose fields they

worked, claiming that the two jointly employed them. Id. at 437.

Unlike in Griffin & Brand, virtually all direct supervision of the

workers in Aimable was performed by the contractor, who also had

the sole power to hire or fire the harvest workers and "exercised

absolute, unfettered, and sole control over [the workers] and their

employment." Aimable, 20 F.3d at 440-41. The labor contractor in

Aimable also handled all payroll responsibilities, determined the

crew's wage rates, and "made significant investments in equipment

and facilities." Id. at 440-43. Under these circumstances, we

concluded that the farmworkers were not economically dependent on

and therefore were not "employed" by the grower. Id. at 445.

C. Determining Joint Employment Status

In Aimable, this court recognized at least eight factors that

can be analyzed to determine whether a farmworker furnished by a

labor contractor was economically dependent on, and therefore

jointly employed by, a grower: (1) the nature and degree of the

grower's control of the farmworkers; (2) the degree of the

grower's supervision, direct or indirect, of the farmworkers' work;

(3) the grower's right, directly or indirectly, to hire, fire, or

modify the farmworkers' employment conditions; (4) the grower's

power to determine the workers' pay rates or methods of payment;

(5) the grower's preparation of payroll and payment of the workers'

wages; (6) the grower's ownership of the facilities where the work

occurred; (7) the farmworkers' performance of a line-job integral
to the harvesting and production of salable vegetables; and (8)

the grower's and labor contractor's relative investment in

equipment and facilities. Id. at 440-46.9

In applying these factors, we are guided by several

principles. First, the question in "joint employment" cases is not

whether the worker is more economically dependent on the

independent contractor or the grower, with the winner avoiding

responsibility as an employer. As the term "joint employment"

suggests, 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." House Report at 4553. Thus,

rather than comparing the employment relationships in order to

exclude one, "[t]he focus of each inquiry ... must be on each

employment relationship as it exists between the worker and the

party asserted to be a joint employer." Id. at 4553-54.

Second, no one factor is determinative. Rutherford Food

Corp., 331 U.S. at 730, 67 S.Ct. at 1477. As we explained in

Aimable, the existence of a joint employment relationship depends

on "the "economic reality' of all the circumstances." Aimable, 20

F.3d at 439 (emphasis added); see 29 C.F.R. § 500.20(h)(4)(i)

9
The first five factors come from DOL regulations. See
supra note 6. The sixth, seventh and eighth factors come from
caselaw. See Aimable, 20 F.3d at 443-45. In Aimable, the court
acknowledged that three additional factors—the farmworker's
opportunity for profit and loss, the permanency and exclusivity
of the employment, and the degree of skill required to perform
the farmworker's job—ordinarily are relevant only where the
question is whether the workers are independent contractors or
employees, and not where the question is whether the farmworkers
are employed solely by the contractor or jointly by the
contractor and the farmer. Id.
(providing that "determination of whether the employment is to be

considered joint employment depends upon all the facts in the

particular case") (emphasis added).

Third, the factors are used because they are indicators of

economic dependence. See Aimable, 20 F.3d at 439. They are

"aids-tools to be used to gauge the degree of dependence of alleged

employees on the business to which they are connected. It is

dependence that indicates employee status. Each [factor] must be

applied with that ultimate notion in mind." Usery v. Pilgrim

Equipment Co., Inc., 527 F.2d 1308, 1311 (5th Cir.), cert. denied,

429 U.S. 826, 97 S.Ct. 82, 50 L.Ed.2d 89 (1976). Thus, the weight

of each factor depends 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, see Aimable, 20

F.3d at 440.

Fourth, a joint employment relationship is not determined by

a mathematical formula. "[T]he 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." House Report at 4553. The purpose of weighing the

factors is not to place each in either the contractor or the

grower's column, but to view them qualitatively to assess the

evidence of economic dependence, which may point to both. See

Usery, 527 F.2d at 1311 (explaining that "the collective answers to

all of the inquiries [cannot] produce a resolution which submerges

consideration of the dominant factor—economic dependence").

Fifth, in considering a joint-employment relationship, we
must not allow common-law concepts of employment to district our

focus from economic dependency. See Aimable, 20 F.3d at 439;

House Report at 4553. Indeed, the "suffer or permit to work"

standard was developed to assign responsibility to businesses that

did not directly supervise putative employees. See Rutherford Food

Corp., 331 U.S. at 728 & n. 7, 67 S.Ct. at 1476 & n. 7; People ex

rel. Price v. Sheffield Farms-Slawson-Decker Co., 225 N.Y. 25, 121

N.E. 474, 476 (1918). Thus, our inquiry looks "not to the common

law definitions of [employer and employee] (for instance, to tests

measuring the amount of control an ostensible employer exercised

over a putative employee), but rather to the "economic reality' of

all the circumstances concerning whether the putative employee is

economically dependent upon the alleged employer." Aimable, 20

F.3d at 439.10

Finally, because the FLSA and AWPA are remedial statutes, we

must construe them broadly. See A.H. Phillips, Inc. v. Walling,

324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945)

(recognizing that FLSA must be interpreted broadly to effectuate

its "humanitarian and remedial" purpose); Caro-Galvan v. Curtis

Richardson, Inc., 993 F.2d 1500, 1505 (11th Cir.1993) (stating that

10
Thus, courts have found economic dependence under a
multitude of circumstances where the alleged employer exercised
little or no control or supervision over the putative employees.
See, e.g., Castillo v. Givens, 704 F.2d 181, 184 (5th Cir.)
(finding dependence where grower visited farm only three or four
times per week), cert. denied, 464 U.S. 850, 104 S.Ct. 160, 78
L.Ed.2d 147 (1983); Usery, 527 F.2d at 1312 (finding dependence
where putative employer had "neither the right to hire employees
nor the right to set hours"); Fahs, 166 F.2d at 43 (finding
dependence where business had no right to control number of
employees, wages or hours); Alviso-Medrano v. Harloff, 868
F.Supp. 1367, 1372 (M.D.Fla.1994) (finding employment
relationship where no direct oversight by grower).
"[b]road construction of the [AWPA] comports with [its]

humanitarian purpose to protect all those hired by middlemen to

toil in our nation's fields, vineyards and orchards") (quotation

omitted).

D. Application of Factors to this Case

With these principles in mind, we turn to the evidence in

this case. Although we initially consider the factors separately,

we ultimately weigh them collectively and qualitatively to

determine whether the pickers, notwithstanding any employment

relationship with the contractor,11 were economically dependent on,

and therefore jointly employed by, the growers under the FLSA and

AWPA.

1. Nature and degree of control of workers

The first indicia of joint employment status concerns the

"nature and degree of [the growers'] control of the workers." 29

C.F.R. § 500.20(h)(4)(ii)(A). Such control arises when a grower

determines, for example, the number of workers hired for a job,

when work should begin on a particular day, which workers should be

assigned to specific tasks, and whether a worker should be

disciplined or retained. Aimable, 20 F.3d at 441. As noted

earlier, the suffer or permit to work/economic dependence standard

defines employment in a way that does not depend on the common-law

understanding of employment, which was based on limiting concepts

of control. See id. at 439. Nevertheless, a grower's control of

farmworkers does shed some light on economic dependence.

11
The parties do not dispute that Turke and Ag-Tech were
employers of the farmworkers.
 The evidence indicates that the growers exercised control over

the farmworkers in several ways. First, the growers told Turke how

many farmworkers to bring each day.12 Second, the growers' foremen,
rather than Turke, determined the precise moment when picking would

commence each day. Third, the growers were free to directly delay

or stop the workers from continuing their work. For example, when

new immigration laws that required increased worker documentation

went into effect, the growers stopped the harvest to verify that

Turke and his workers were in compliance with the laws, and they

did not allow work to resume until Turke demonstrated their

compliance the following day.13 Finally, the growers had the

12
Turke testified in deposition as follows:

Q. And during the '85-'86 harvest season, again
isolating on D & S Farms, you learned of the harvest
needs through telephone contact from [D & S Farms'
manager]?

A. Correct. He would call.

Q. He would call?

A. Right. He would tell me how many rows. He
would tell me where the field was and how many people
he'd like to have.
13
Turke testified as follows about the incident:

A. [O]ne morning I went to the field and I was
told that I had to get my pickers out of the field
because they had no ID cards.

Q. Who told you that?

A. This came down from one of the people that
worked for both farms. We were picking for both farms
that day, I remember that much, and we were stopped and
our people were told to leave the field because we
didn't have IDs.

Q. And you were told by some representative of
each of the farms that your crew was to stop working?
ability indirectly to assign work to specific workers. During the

1986-87 season, for example, they moved the pickers from one row to

another and from one plot to another by assigning their own

tomato-picking crews to pick plots and rows that were being picked

by the farmworkers. Compare Griffin & Brand, 471 F.2d at 237-38

(finding that farmer exercised a "degree of apparent on-the-job

control" over workers by "tell[ing] the crewleaders at what hour to

A. To stop working because they had no ID cards
from the South Florida Vegetable Association.

Q. And so did your crew, in fact, stop work?

A. They did, and they went down there, lined up to
try and get ID cards so they could come back and finish
the job.

In the meantime, I went to my office and brought
back a copy of the law that said the ID card was not
necessary and they could not force the people to have
an ID card, because they wanted to charge the people
$7.50, I believe, for the ID cards.

And I told [the growers]. I said, "Look," I said,
"I'm making ID cards for free for these guys." I said,
"I'm charging three dollars, but it takes me three
dollars just to get an ID card done." I said, "I'm not
trying to make a nickel out of this thing." I said,
"These guys are just in it trying to make some money."

And then I showed them the law and I showed them
my card and I showed them the—you know, the
documentation that we had behind our cards and, you
know, basically the same thing that [the South Florida
Vegetable Association representative] had. Now, ours
were not as elaborate as his, but they did the job.

Q. Right. And so you had this conversation with
[the growers]?

A. Right, and I showed them the law.

Q. And what did they say after you spoke with
them?

A. Told me to put my people back to work.
begin work") with Aimable, 20 F.3d at 440-41 (concluding that

contractor had "absolute, unfettered, and sole control" over

farmworkers).

2. Degree of supervision of the work

The second factor bearing on joint-employment status is the

"degree of supervision [by the grower], direct or indirect, of the

work." 29 C.F.R. § 500.20(h)(4)(ii)(B). Somewhat similar to the

previous factor, such supervision includes overseeing the pickers'

work and providing direction. Aimable, 20 F.3d at 441. This

factor, like the growers' control over the workers, has more to do

with common-law employment concepts of control than with economic

dependence. Indeed, the "suffer or permit to work" standard was

developed in large part to assign responsibility to businesses

which did not directly supervise the activities of putative

employees. Rutherford Food Corp., 331 U.S. at 728 & n. 7, 67 S.Ct.

at 1476 & n. 7; Sheffield Farms-Slawson-Decker Co., 121 N.E. at

476. Nevertheless, a grower's supervision of farmworkers, like a

grower's control of them, provides some guidance to our inquiry.

In considering this factor, "special aspects of agricultural

employment [must] be kept in mind." House Report at 4554. When

unskilled labor is utilized in an agricultural setting, for

example, the grower is not expected to look over the shoulder of

each farmworker every hour of every day. Thus, "[i]t is well

settled that supervision is present whether orders are communicated

directly to the laborer or indirectly through the contractor."

Aimable, 20 F.3d at 441 (citing Griffin & Brand, 471 F.2d at 238).

In this case the evidence reflects that the growers supervised
the pickers in substantial ways. In addition to telling them when

picking could begin and distributing the boxes, the growers' field

workers directly oversaw and intervened in the pickers' work, both

directly and indirectly, on a daily basis. Turke testified to the

growers' oversight and direct intervention as follows:

Q. And what would these D & S Farms people do?

A. They would walk around and make sure the baskets were
full, make sure the quality control was there, no trash in the
baskets. If there was a problem, they'd bring it to our
attention.

Q. Did you ever see the D & S Farms employees talk
directly to the workers or try to show them what they were
doing wrong?

A. Yes. Yes.

Q. Did that happen very often?

A. Day to day. They couldn't hardly be out there without
it.

Turke also testified that the growers would complain to him "that

the job was not going fast enough."

We find this supervision more substantial than the "infrequent

assertions of minimal oversight" by the grower in Aimable, 20 F.3d

at 441, where the grower's employees, "except on rare occasions,

left supervision and oversight of [the farmworkers] entirely to

[the contractor] and his crew" and "rarely provided any direction

to [the farmworkers'] work," id. In contrast to this "de minimis"

supervision, id., the growers in the present case oversaw and

directly intervened in the pickers' work on a daily basis. See

Griffin & Brand, 471 F.2d at 238 (finding joint employment where

farmer's field supervisors regularly gave instructions to crew

leaders who passed them on to workers); Haywood v. Barnes, 109
F.R.D. 568, 590 (E.D.N.C.1986) (finding joint employment based in

part on regular supervision).

3. Right to hire, fire, or modify employment conditions

The third indicia of joint employment is the growers' "right,

directly or indirectly, to hire, fire, or modify the employment

conditions of the workers." 29 C.F.R. § 500.20(h)(4)(ii)(D). In

this case, the evidence indicates that the growers had the power to

"veto" Turke's hiring decisions and to modify employment conditions

such as the hours the pickers worked. For example, the growers

themselves monitored the workers' job qualifications rather than

relying on Turke to do so when they stopped work until they could

verify compliance with the new immigration laws.

Additionally, as discussed above, the growers dictated the

workers' hours, a condition of employment, by deciding when the

work was to begin, by forcing the pickers to stop picking when

prices were bad, and, during the '86-'87 season, by sending their

own tomato-picking crews into fields assigned to the farmworkers,

causing them to run out of work by noon. Compare Aimable, 20 F.3d

at 442 (finding no dependence where grower never dictated hours

employees could work) with Griffin & Brand, 471 F.2d at 237

(finding dependence where business decided daily starting times).

4. Power to determine pay rates or methods of payment

The next factor is the degree to which the putative employer

has the "[p]ower to determine the pay rates or the methods of

payments of the workers," 29 C.F.R. § 500.20(h)(4)(ii)(C). In this

case, Turke and the growers agreed to the payment of $3.90 per box.

However, pay rate refers not only to the amount of compensation to
be paid, but includes benefits such as worker's compensation

insurance and social security, as well as how these various

payments are allocated. Method of payment refers to the basis upon

which a worker is paid, for example, by the hour or by the piece.

See Aimable, 20 F.3d at 442; Griffin & Brand, 471 F.2d at 238.

The growers' power to exercise some control over the workers'

pay in this case is evidenced by their deduction of money from

their payments to Turke. First, rather than paying Turke the full

$3.90 per box of beans harvested, they deducted 11¢ per box to

purchase worker's compensation insurance, decided which insurance

to buy, and named themselves as the policy holders. Thus, Turke

did not solely and independently establish wage rates and other

benefits for the workers. Indeed, Turke could not purchase

insurance to cover the workers because he lacked the economic

wherewithal; in his own words, "[he] didn't have the money to fork

up for workman's comp right then and there." Thus, the farmworkers

were dependent on the growers to obtain financial compensation for

job-related injuries. See Fahs, 166 F.2d at 42 (finding dependence

where employee covered by business' worker's compensation

insurance); Hamilton v. Shell Oil Co., 215 So.2d 21, 22 (Fla. 4th

DCA 1968) (holding that "relationship of employer-employee is

essential to liability for workmen's compensation benefits"); cf.

Griffin & Brand, 471 F.2d at 236 (finding dependence where business

deducted social security payments from check given to crew leader).

The evidence shows that the growers also deducted money from

the negotiated box price to cover social security taxes, giving

Turke a separate check for the employer and employees' shares of
these taxes. The growers segregated the payments to ensure that

Turke properly reported and paid the taxes on the farmworkers'

labor. Cf. Griffin & Brand, 471 F.2d at 236 (observing that crew

leader was "totally incapable of seeing that social security [wa]s

paid in behalf of the harvesting crews"). Like the deduction for

worker's compensation insurance, the growers' segregation of the

social security payments limited Turke's freedom to allocate the

money he received for his services. And just as the workers

depended on the growers for worker's compensation coverage, they

relied on them to see that the social security payments were made

as well. Cf. id. (stating that "[t]he fact that [the business] ...

handled the social security contributions for the harvest workers

also tend[s] to indicate an employment relationship").14

5. Preparation of payroll and payment of wages

The next factor, which in this case is interrelated to the

determination of pay rates, is the putative employer's involvement

in the "[p]reparation of payroll and the payment of wages" to the

workers. 29 C.F.R. § 500.20(h)(4)(ii)(E). This factor is

probative of joint employment because of the likelihood that when

a business undertakes to help an independent contractor prepare its

payroll and pay its wages, it is likely that the contractor lacks

economic substance on which the workers can solely depend.

Here, as noted earlier, the growers computed and segregated

social security taxes and purchased worker's compensation to cover

the workers. These actions certainly do not demonstrate that Turke

14
After these deductions were made, Turke took his profit
and paid the balance to the subcontractors, who deducted their
pay and paid the pickers.
was a truly independent employer. On the contrary, they indicate

another way in which the farmworkers were economically dependent on

the growers. See Griffin & Brand, 471 F.2d at 236 (finding

dependence where contractors "totally incapable of seeing that

social security is paid in behalf of the harvesting crews").

6. Ownership of facilities where work occurred

The first non-regulatory factor indicative of an employment

relationship in this case is the putative employer's ownership of

the facilities where the work occurred. See Aimable, 20 F.3d at

444; see also Rutherford Food Corp., 331 U.S. at 730, 67 S.Ct. at

1477; Griffin & Brand, 471 F.2d at 238. This element is probative

of joint-employment status for the obvious reason that 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, see Gulf King Shrimp Co. v.

Wirtz, 407 F.2d 508, 513-14 (5th Cir.1969). We need not dwell on

this factor because there is no question that the growers owned the

land where all the work was performed.

7. Performance of a line-job integral to business

Another non-regulatory indicia of an employment relationship

between workers and a grower is the workers' performance of "a

line-job integral to the harvesting and production of salable

vegetables." Aimable, 20 F.3d at 444. 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. See
Rutherford Food Corp., 331 U.S. at 730, 67 S.Ct. at 1477; Fahs,

166 F.2d at 43-44.

The evidence in this case indicates that the pickers performed

a routine line-job integral to the growers' business of growing,

harvesting and packing snap beans for fresh market sale. Turke and

his crew were but one part of an "integrated economic unit"

operated by the growers. Because the farmworkers performed a

routine task that was a normal and integral part of the growers'

bean production process, they were analogous to employees working

at a particular position on a larger production line. They were

dependent on the growers' overall production process, of which they

were one small but indispensable part. See Rutherford Food Corp.,

331 U.S. at 729-30, 67 S.Ct. at 1476-77; Fahs, 166 F.2d at 43-44.

8. Investment in equipment and facilities

Finally, one must consider the relative degree of investment

in equipment and facilities by the independent contractor on the

one hand, and the putative employer on the other. See Rutherford

Food Corp., 331 U.S. at 730, 67 S.Ct. at 1477; Ricketts v. Vann,

32 F.3d 71, 74 (4th Cir.1994). This factor is probative because of

the workers' economic dependence on the person who supplies the

equipment or facilities.15

15
The growers argue that this factor is irrelevant to our
inquiry. According to the growers, Aimable held that a disparity
between the farmer's and the independent contractor's investment
in equipment and facilities is relevant only if the issue is
whether the contractor is an independent contractor or an alleged
employee. We disagree for two reasons. First, although the
Aimable court noted that relative investment helps determine
whether workers are employees or independent contractors,
Aimable, 20 F.3d at 443, the court stopped short of holding that
it never is relevant in joint employment cases. In fact, the
court noted that the factor did not aid its joint employment
 In this case the growers owned virtually all the equipment and

facilities used by the farmworkers: the picking boxes, the lids

and wire used to close them, the pallets on which the boxes were

placed, and the trucks used to transport the boxes to the

packinghouse. Unlike the contractor in Aimable, who "made

significant investments in equipment and facilities," including

trucks, tools and a labor camp, Aimable, 20 F.3d at 443, Turke had

no equipment or vehicles of his own. Thus, his role was more like

that of the contractor in Rutherford Food Corp., who provided no

equipment and had no real business organization. Rutherford Food

Corp., 331 U.S. at 731, 67 S.Ct. at 1477. Just as the workers in

Rutherford Food Corp. could not realistically depend on their crew

leaders for other work if the slaughterhouse shut down, id., the

farmworkers here could not depend on Turke alone for their economic

livelihood.

9. Consideration of All Factors

When we consider the preceding factors collectively and

qualitatively, we conclude that the evidence before the district

court indicated that the farmworkers were jointly employed by Turke

and the growers under the AWPA and the FLSA. To be sure, many

aspects of the relationship demonstrate that the pickers were

economically dependent on Turke. Turke hired and assigned pickers

inquiry because both the grower and the labor contractor there
had substantial investment in equipment and facilities. See id.
(recognizing labor contractor's "significant investments in
equipment and facilities," including trucks, tools and labor
camp). Second, the Supreme Court has recognized that this factor
is relevant to a worker's dependence on a putative employer. See
Rutherford Food Corp., 331 U.S. at 731, 67 S.Ct. at 1477; see
also Ricketts, 32 F.3d at 74. We therefore consider it.
to particular fields; he directly supervised their work; he

negotiated the price per box; he fired and disciplined workers;

and he paid the workers' wages. At the same time, however,

significant aspects of the relationship evidence the pickers'

economic dependence on the growers as well. The growers exercised

a measure of control in terms of the numbers of pickers needed and

the specific hours of work. They exercised a measure of

supervision and directly intervened in their work process. They

involved themselves in the payroll process and in making provision

for social security and workers compensation insurance when the

labor contractor was too financially unstable to do so. The

growers owned the facilities and controlled the overall production

scheme in which the pickers performed an integral line job; and

the growers, unlike Turke, had substantial investment in equipment

and facilities that were necessary for the pickers' work.

The totality of the evidence before the district court at

summary judgment demonstrates the economic dependence of the

pickers on both Turke and the growers. Such joint economic

dependence was expressly contemplated by Congress when it adopted

the "joint employer" doctrine as the best means to ensure that the

remedial purposes of the AWPA would be fulfilled. Thus, the

district court erred in concluding that the farmworkers were not

employees of the growers for purposes of the FLSA and the AWPA.

IV. CONCLUSION

In light of the foregoing, the judgment granting summary

judgment to the growers is REVERSED and the case is REMANDED for

proceedings consistent with this opinion.
* * * * * *