982 F.3d 1242
10th Cir.2020Background
- In Sept. 2011 Cervantes (family-owned farm businesses) signed a one‑page “Agreement of Outsourcing Support” with labor contractor WKI to provide H‑2A or other farm workers for a defined crop season and number of workers.
- WKI submitted an H‑2A application and required clearance order and contracts (including the Cervantes agreement) to the DOL; many U.S. workers applied and WKI offered employment to the Plaintiffs under the clearance order.
- WKI cancelled its H‑2A application in November/December 2011, claiming weather/drought made performance impossible; Plaintiffs were never employed by Cervantes and Cervantes instead used a longtime local contractor who paid lower wages.
- Plaintiffs sued Cervantes (and others) for breach of contract, violations of the AWPA, fraud, and civil conspiracy; the district court granted summary judgment for Cervantes on all claims.
- The Tenth Circuit reviewed de novo, held there is a genuine factual dispute whether WKI acted as Cervantes’s agent (so reversal on breach and AWPA §1822(c) on agency theory), but affirmed summary judgment for Cervantes on the conspiracy claim for lack of evidence of an agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cervantes can be liable for breach of the clearance‑order contract because WKI acted as Cervantes’s agent in hiring | WKI was authorized by Cervantes to recruit/hire under H‑2A; Plaintiffs reasonably relied on that authority, so Cervantes is bound | Cervantes lacked the requisite right to control WKI and WKI was an independent contractor, not an agent | Reversed summary judgment: factual dispute exists whether WKI had actual or apparent authority to bind Cervantes (agent standard requires less control than employer/employee test) |
| Whether Cervantes is liable under AWPA §1822(c) for violating the terms of working arrangements created by WKI | Cervantes is liable because WKI acted as its agent in making working arrangements; agency makes Cervantes responsible under AWPA | Cervantes argued it did not enter working arrangements with Plaintiffs and was not a joint employer | Reversed summary judgment as to §1822(c) on agency theory (agency is a threshold for AWPA liability); joint‑employer theory rejected on these facts |
| Whether Plaintiffs proved a civil conspiracy between Cervantes and WKI to evade H‑2A requirements | Cervantes and WKI intended to obtain Mexican labor without complying with H‑2A priority/rules; circumstantial facts (no need for Mexican labor, false cancellation reason, later use of cheaper local labor) show agreement | No direct or sufficient circumstantial evidence of an agreement or meeting of the minds; allegations are speculative | Affirmed summary judgment for Cervantes: plaintiffs failed to show the requisite agreement for conspiracy |
Key Cases Cited
- Llacua v. Western Range Ass'n, 930 F.3d 1161 (10th Cir. 2019) (describing H‑2A program and DOL recruitment priority for U.S. workers)
- Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) (overview of H‑2A framework)
- N.C. Growers' Ass'n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012) (AEWR and DOL regulatory purpose to protect domestic wages)
- Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002) (discussion of clearance/order and recruitment process)
- San Juan Agr. Water Users Ass'n v. KNME‑TV, 257 P.3d 884 (N.M. 2011) (agency principles and when principal is bound by agent)
- Quigley v. Rosenthal, 327 F.3d 1044 (10th Cir. 2003) (distinguishing agent vs employee control requirements)
- Reyes v. Remington Hybrid Seed Co., Inc., 495 F.3d 403 (7th Cir. 2007) (limitations on farm liability for contractor promises made before farm involvement)
- Renteria‑Marin v. Ag‑Mart Produce, Inc., 537 F.3d 1321 (11th Cir. 2008) (labor contractor acts as agent for AWPA liability in certain contexts)
- Ochoa v. JB Martin & Sons, 287 F.3d 1182 (9th Cir. 2002) (labor contractor treated as agricultural business’s agent in hiring)
- Castillo v. Case Farms of Ohio, Inc., 96 F. Supp. 2d 578 (W.D. Tex. 2000) (attributing contractor interactions with workers to farm for AWPA compliance)