Paulina Castillo v. Ercell Givens

the evidence before new jury, and it failed to do so. If inconsistency, there was CASTILLO, al., Paulina et defendant,

it was to the detriment the Plaintiffs-Appellants, appellant Bridges. Bridges point, raises the additional GIVENS, however, Defendant-Appellee. Ercell jury first verdict indi jury cated confusion and that the district No. 81-1520. court request therefore erred in denying for a new trial the issue of strict liabili United States Court of Appeals, ty. jury When questions sent out dur Fifth Circuit. ing its deliberations requesting clarification meanings such terms as 6,May “flammable, combustible, explosive,” Rehearing 16, 1983. Denied June judge properly met with counsel and proposed discussed the answers to the jury

questions. The judge indicated that if the

parties answers, could not agree on

would order however, a mistrial. Bridges,

agreed to the given answers which were jury. circumstances, Under these we

can find no error in jury instructions.

Finally, if is general there confu

sion, as possibly evidenced judge,

jury, parties, precise scope

of Louisiana law on liability strict for a

dangerous product compared to liability negligence for a dangerous product, that

confusion, above, pointed as is out was in

this case to disadvantage of the defend ant, not plaintiff. The jury was sub a straightforward

mitted interrogatory on

strict liability. Any possible confusion on issue up was cleared by answers to questions

jury appellant agreed. which products difficult issues inherent

liability cases can tax even the willing most juries, motivated and the fact that jury requested clarification of difficult

issues well clarity indicate rather than

confusion.

We find no juries reversible error. The

properly performed their function fact-

finding, and judge’s the district granting of

partial judgment for defendant on the liability

strict claim after first trial was

not erroneous.

AFFIRMED. Tuddenham, Legal J. Tex. Rural

Edward Div., Hereford, Aid, Inc., Worker Farm Tex., for plaintiffs-appellants. Sol., Lord, D. Bloch,

Beate Assoc. Sandra D.C., Labor, Dept, Washington, ami- U.S. curiae. cus Crenshaw, Milam, Tom Mi- Dupree & S. lam, Tex., Lubbock, defendant-appellee. THORNBERRY, JOHNSON and Before HIGGINBOTHAM, Judges. Circuit JOHNSON, Judge: Circuit liquidated award of damages in an amount up per violation. $500 Plaintiffs, thirty-nine Mexican and Mexi- can-American migrant farm laborers who 1. Facts chopped cotton in defendant’s fields during Givens, Defendant Ercell President of the summers of brought 1977 and First State Bank of Abernathy for twenty- action under 216(b) section of the Fair La- years, six owned a farm of approximately (FLSA) bor Act unpaid Standards for mini- acres, of which about 1800 acres in wages mum and liquidated damages and 1977 and 2000 acres in 1978 were devoted to under section 2050a of the Farm Labor cotton production. Defendant employed Registration Contractor (FLCRA) Act for five fulltime “hands” to run his liquidated farm as damages. The district court en- well as seasonal temporary per- hands to judgment tered for defendant on both claims, jobs form such as operating based on the tractors jury’s answers to nine feeding cattle. special Defendant issues. Plaintiffs himself made appeal from the the decisions of court’s denial when and where prepare of their motions for to judgment fields, plough, n.o.v. and when to alternatively plant, for a when to new trial. cultivate, regard claim, With to when to and when to harvest. this Court In produce reverses order to good and remands for a new cotton crop, trial on the cotton number of chopped hours worked should be by the individual the summertime2 job and for a —the simply the Court as involves chopping or hoe- to an liquidated award of damages.1 ing With the weeds out of the rows of growing regard claim, to the FLCRA menial, this re- cotton. It is a unskilled task which verses and remands for a determination of requires aptitude, no no training, and no the number of violations committed and the ability to reason. It is a work of drudgery 1. The district Telephone court has discretion in Telegraph whether to Reeves v. International & liquidated and, damages does, Corp., award if (5th Cir.1980) it [citing amount of the award Tiffany Pub, Inc., if the court English determines Barcellona v. pay that wage the defendant’s failure to (5th Cir.1979)]. minimum discussing In good was in faith and that he had reason- good requirement, the “reasonable faith” grounds able to believe that his failure to following Court made the statements: minimum was not a violation of the validity ignorance also doubt the as a [W]e FLSA: liability liquidated damages defense to for any prior under Section 11. We do not believe an action commenced to or on or employer may rely May ignorance unpaid after 1947 to alone as recover mini- wages, grounds unpaid compensation, believing mum reasonable overtime that its ac- liquidated damages, under the Fair tions were not in violation Labor of the Act. Fur- amended, ther, good Standards Act requires as if the we feel that faith some employer duty investigate potential liability shows to the satisfaction of the to under giving court that the act or omission rise inexperienced to the FLSA. Even businessmen good such action was in faith and that he had good they blindly cannot claim operate faith when grounds believing reasonable that his act making any a business without in- or omission not a violation of the Fair vestigation responsibilities as to their under amended, Labor Standards Act of Apathetic ignorance the labor laws. is never discretion, the court in its sound award basis of a reasonable belief. liquidated damages no or award amount Barcellona, 597 F.2d at 468-69. specified thereof exceed the amount showing by A successful defendant under 29 section 216 of this title. preclude § U.S.C. does the award of 29 U.S.C. 260 § liquidated damages. language Under the interpreted statutory This Court has lan- statute, even if the court determines that de- guage as follows: good met the fendant has “reasonable faith” Section 11 of the Portal-to-Portal Act [29 requirement, the court nonetheless has discre- 260], imposes upon U.S.C. seeking liquidated damages. tion to award escape liquidated damages plain proving substantial burden of chopping 2. The season in the area in- cotton good its violation was “both in faith and volved runs from around June 20 to mid-Au- predicated upon grounds such reasonable gust. impose upon that it would be unfair him compensatory more than a verdict.” worked. Tonche to him had been ranging reported by persons performed which can the indi- old; mete out the would then it is accom- quite very young kept track in cash. Tonche hoe. vidual workers simple instrument —the plished with of hands and the number Tonche to fur- of the number Manuel employed Defendant brought daily on a basis and worked of field workers hours him with a crew nish piece on a of a to defendant figures knew these his cotton.3 chop copy would then paper sack.5 Defendant Department with the registered Tonche was his own record book. contractor, figures into Tonche’s (DOL) as a farm labor of Labor keep any did not Significantly, Tonche to show required and defendant than his cancelled records other further card from DOL his identification particular, de- Tonche, to Tonche. paychecks an illit- season. beginning of each keep any records did not sécond-grade education fendant erate names, their hours plaintiffs’ the bodies and individual “junked” (cut up cars who work, winter, wages. their iron) in the scrap sold the metal the defendant. In search only worked a farm running exigencies Both the work, the workers contacted field prevented serving president as bank and his to transportation provided Tonche. Tonche the supervising physically defendant the workers in his the fields for most of at all times. employees his farm work of bus, in their own used but some came school to the fields Nevertheless, defendant went brought the Tonche’s son pickups. vans or week to make sure three or four times a to the fields in pickup. hoes his (his fields), right in the fields workers were hands work- on the number of up with workers to check provided defendant his entire farm- to make sure how years ending ing, and chop to his cotton four size, It was de- operation progressing. was ranging ing 1978.4 The crew varied in the decision on when up fifty fendant who made thirty forty from around season, fields in the on which chopping In addition to start persons any day. one were in what order fields crew, chop, also hired the and Tonche’s defendant Moreover, direct- defendant wives, children, chopped. friends of his fulltime to be and chopped to be which weeds were Although cotton. defendant ed Tonche chop hands to chopped; not to be minimum which weeds were always paid his bank and joba was fin- when choppers, including cotton defendant determined wage, paid he his Tonche, and ished. an hour in 1977 $1.75 $1.65 wage minimum

hour in 1978. The investigated September DOL 1977 and an hour in an hour in $2.65 $2.20 deter- operation and farming was aware of Although 1978. owed back FLSA mined that defendant law and the amount of wage the minimum members of to nine minimum wage in 1977 and he the minimum in de- chopped who cotton Tonche’s crew the law stated that he did not realize 1978; 1977 and defend- fields in fendant’s minimum to his required also The DOL those nine workers. ant employ- as to bank farm workers as well his defendant for violations investigated ees. letter FLORA; advised not con- the DOL was in March 1979 that Friday, give defendant would On each the viola- further action on templating any on the Tonche a check based number Tonche, the In addition number of hours Tonche tions indicated. hands and the children, Tonche, help of his own Although with the defendant claims that “contract- chop kept individual workers’ ed with” Tonche cotton —not a notebook nickname) choppers (many and the to furnish him with cotton were listed names —defend- they trial that Tonche could not The names ant admitted at hours worked. number of chop always farm all figures the cotton on a 2000-acre transcribed often but paper pieces himself. from loose into this notebook Tonche, son, daughter had written where unpaid wages for 4. Plaintiffs ask for minimum in the fields. them while years and 1978. plaintiffs who plaintiffs defendant, filed instant action on vis-a-vis the willful- 14, 1980,6 February were members of ness of 16(b), violation section Tonche’s crew who did not receive back plaintiffs number of hours worked. minimum wages.7 jury. case was tried to a At the A. Plaintiffs’ Status evidence, close of all plaintiffs moved for a on all except directed verdict issues Question 1. A of Law calculation of number of hours of This repeatedly Court has held that performed- by plaintiffs. The jury the ultimate conclusion that an individual is against found plaintiffs on each of nine an “employee” within the meaning of the special issues submitted to it.8 On June FLSA a determination rather than 1981, judgment court entered for de- a factual one.9 recently, Most in Robi fendant on both claims. Plaintiffs moved Material, cheaux Inc., v. Radcliff for judgment respect n.o.v. with to all is- (5th Cir.1983), at 666 this Court dealt sues alternatively for a new trial with directly with the standard of review for the regard they to the worked. hours status; determination of employee 7, 1981, order of October court denied judgment both the motion for n.o.v. and the We review the district court’s determi- motion for a With respect new trial. nation plaintiff welders are em- [that claim, the court concluded that ployees meaning within the of the FLSA] jury’s finding that were not en- fact, being one of law (ci- mixed gaged production goods for com- omitted). tation to the trial As court’s merce supported by was not the evidence. underlying findings factual and factual stated, however, The court the jury therefrom, inferences deduced we are reasonably could have found that defendant by bound the clearly erroneous standard plaintiffs’ employer. respect With 52(a) of Rule of the Federal Rules of Civil claim, to the FLCRA the court held that the However, Procedure. Id. as to legal jury’s plaintiffs finding that were not mi- by conclusion reached the district court grant not supported laborers was by the data, i.e., based upon this factual here Nevertheless, evidence. the court stated these employees welders are rather the jury could have reasonably found' contractors, than independent we re- that Tonche was not farm labor contrac- view this as an of law. issue tor. from appeal Plaintiffs this order. Robicheaux, Prior to this Court had occa- II. Claim FLSA sion to address the of review standard the “employee” issues this must status determination in Do- Court address con- cerning Airlines, Inc., claim relate to the status novan v. American 686 F.2d plaintiffs contractor; (3) 6. These include those who were a farm later labor defendant did not by filing added payroll a written consent. fail to maintain records the individu- plaintiffs showing following al of the all infor- Tonche, plaintiff 7. not a who was under the earnings payroll period, mation: each total claim, age fifty-six FLCRA died at before withholdings wages, earnings, all net 15, began the trial on June 1981. Tonche’s wife employed, per number of units of rate time unit representative. was substituted as his time, a statement of all sums to Tonche worker, on account of the of the a state- labor response special relating In to the issues by ment of all sums withheld Tonche from the claim, jury (1) plain- the FLSA found that worker, account amount he received on engaged production tiffs were not purpose withholding; (4) and the of the above goods commerce, (2) plaintiffs were not any comply failure of defendant with the defendant, (3) was not FLCRA willful. failure to the minimum was not will- Special ful in 1977 or in 1978. Issues 4 and 5 Any subsidiary leading related factual issues to this to the number hours the individual course, are, questions 1977 and conclusion of fact for worked in 1978. On the jury (1) plaintiffs jury. FLCRA claim the found that workers; (2) migrant were not Tonche was not facts There, dispute There is no as to the basic (5th Cir.1982). this Court stat- of Jiminez relating engagement ed: performance cleanup for the of the district The standard of review legal, day’s is that of a and not after he finished his work as a court’s decision factual, Thus, although determination. court’s determina- slaughterer. trial clearly erroneous by we are bound the relation- tion that these facts created reviewing the individual find- standard in ... ship independent of an leading to the district court’s ings of fact which finding not a of fact is bolstered conclusions, the determination we review rule when reviewed clearly erroneous employ- here were not the students early In the case of Ruth- by this court. we review determination ees as McComb, Corp. v. erford Food law. 91 L.Ed. 67 S.Ct. (citations omitted). The American Airlines well as the Court of Supreme Court as opin- with this holding is in accord Court’s Circuit, Walling v. Appeals for the Tenth Tehco, ion v. 642 F.2d in Donovan Corp., Rutherford Food 156 F.2d Cir.1981) we (5th n. 4 where stated: Cir.], finding treated such a as be- [10th reviewing the district court’s ultimate law, review as a matter of ing subject to at findings that the workers issue disagree- an elaborate notwithstanding contractors, con- independent we are not point by Judge Phillips ment on this “clearly strained erroneous” stan- 156 F.2d 513 Appeals. the Court of Rather, are findings dard. these ultimate clear that the defini- page 517. It is determinations. treated in the Fair employment, tion of used Tehco, Inc., Donovan v. 143 n. Act, “the Labor broadest Standards (5th Cir.1981). Prior to the Tehco deci included in definition that has ever been sion, Singapore Joint Court Weisel act.” one 1185, 1189 Venture, Inc., n. Id. at 264.10 Cir.1979), had stated: Although above-mentioned eases reviewing the Trial Court’s ultimate rather than to were tried to employee, that Weisel was not an there is no basis to differentiate be- jury, “clearly we are not constrained regarding ease jury nonjury tween a and a Rather, erroneous” test. is determination, employee determination as the status of legal (cita treated as a legal provisions The substantive However, factual. omitted). tion individual minimum of the Act at issue—violations of fact findings leading conclusion overtime, “clearly keeping provi- are examined under the errone and record wage, nonju- ous” test. Mitchell v. jury Strickland the same in both sions—are Co., 124, 126 (5th Transportation 228 F.2d con- employee/independent cases. If the ry Cir.1955). legal is a one in a tractor determination court, it also be a case tried to the must holding The initial decision of this Circuit Indeed, jury. one in a case tried to a legal employee/independent court, Robicheaux, to the although tried legal status determination is a one was 216(b) plain- a suit in which the Hinojoso, (5th v. 432 F.2d 259 Cir. was section Shultz Shultz, 1970). jury a trial.11 this Court stated: tiff-welders were entitled to separate statu- 10. The Eleventh has also establishes three Circuit held that The (1) employee legal tory under Section issue of is a causes of action: status one which is 216(b), employee may 16(b), subject clearly 29 U.S.C. § to the erroneous standard of unpaid employer overtime com- sue his pensation, review, findings but that the individual of fact wages, unpaid and an minimum legal which lead to that determination must be liquidated equal in dam- additional amount clearly under examined erroneous standard. 16(c) Secretary (2) ages; under Section Hotel, Inc., Donovan v. New Floridian employ- may employee or on behalf of an sue 468, (11th Cir.1982). 471 n. 4 overtime, unpaid unpaid mini- ees recover equal wages, amount an additional mum

187 A plaintiff’s decision to exercise Given the record right testimony in the instant jury change case, a trial does not the standard of there are no unresolved issues of fact applied by review to be this Court.12 which would alter this Court’s conclusion Two view under the is an ly of Circuit The Lone Star U.S. all use the sentially 669-70 stated that question Griffin and Star the Circuit. this Circuit has held that the Griffin and Cir.1983), this ployee noted that omitted). Marshall v. Hanioti Hotel Sabine 1020, joint Whether ployer pellate been ous standard. sentially U.S. (5th Cir.1968). Hodgson v. Griffin and Brand of in relation to an Inc., tion acting those actions has the to-Portal Act tions of the FLSA and to restrain the with- overtime court. analogous holding ployee Lewis v. Times sue of ployees under the Act. (5th Cir.1950); 5 Moore’s Federal Practice Wirtz Secretary ¶ 17 employee Although consistent with the line of cases in this 38.27, p. 213-14. Section 11 of Actions ^[1] two cases cited 473, points Steel, liquidated damages; employer (6th Cir.1971). 3(d) 471 F.2d 235 1022 & 1023 determination is a holding interpreted employers, Falk v. Irrigation [citing An v. Lone directly review is of fact” have been 84 S.Ct. liquidated damages Secretary may McClanahan Steel); this question S.Ct. Brand, of the Act as “[w]hether need to be made. there is compensation Brand, less-than-precise terminology brought “employer” purposes status is a question In the recent case of Donovan v. party payment to actions at terminology Boire that the ultimate determination under Section provides, substantial “clearly in the interest of an 427, joint employer Star Publishing and therefore Co., 894, and Lone Star Steel subject Lone Star is an 29 C.F.R. 471 F.2d at 237-38 employee.” of fact.” At least (5th Cir.), consistently recognized under contrary authority stated: v. encompass (N.D.Ga.1980) (footnote Steel of the FSLA of minimum a 11 Greyhound question including “any person person 38 L.Ed.2d 51 fact; this Court erroneous” right seek to however, L.Ed.2d 849 to the L.Ed.2d 406 which are due Mathews, Section was defined Corp., Brennan, line of Co., law. A Steel, Co., First, (3) is cert. 16(b) accordingly, ap question to a one, probably is clearly This term has subject triable 791.2 under Section 190, 405 F.2d 668 of law. The one or more 185 F.2d 457 enjoin essentially authority 16(c) by corporation 405 F.2d at the denied, that the is under Sec [sic] Corp., it must be jury in Sabine standard. joint employer 440 McAllen, 414 U.S. party opinions (1964)]. F.Supp. Sabine, errone an em (1973); (1973); Portal- of em- (citing within to re- is es viola- total- Lone trial. “es- em 376 em- which allows district court review of that the case did not fall within the narrow and was the NLRA. extraordinary representation relationship affirmed. The tions Act entered in certification of its Board had violated the National Labor Rela- that tion, The district court in establish employees those the Board’s involved the circumstances under which a dis- Leedom v. ceeding were insufficient as a matter of law to court in L.Ed.2d 210 tially would, trict court can undertake a orders of the National Labor Relations Board importantly, Findings indicia of control to be an tion “whether (Board) statement must be the determination whether a ployer (and ployees) Court opinion regarding employee upon termination is hound, facts remains a conclusion of law. fendant was a viewed the district court’s conclusion that de- questions. misled of fact” of these underlying findings from which the Court could In Griffin and draw its erroneous opinion trial clearly erroneous, Secondly, Greyhound Board conceded that it had acted in excess Supreme Floors, contrary if there are and the factual situation in court’s delegated powers, findings a factual issue.” Id. in that 84 S.Ct. at in certification in Lone Star Steel as an Greyhound also cited language legal a findings (NLRA) by attempting regarding indications joint employer relationship in standard, Supreme course, essentially question Kyne, existed. The Court of Inc. was the sole the Lone Star Steel Court findings “findings question; (1958), upon however, Court stated was that the case, however, conclusion as to to a imprecise “essentially Supreme established, limits of the joint employer election where no Greyhound possessed “essentially application Brand, unresolved, underlying in Lone Star Steel. The de- were attached to the Court’s read making of fact were individual or 899; Greyhound. specific prohibition had Court’s the Court Greyhound status to the Greyhound in the certification proceedings. findings proceedings. the court held that the Court ‘ predicated and the Board’s order where this Court re- the Griffin and Brand fact,” context. as a matter of ‘employer’ a contrast between a which the district therefore are em- (emphasis added). of the rule of law plenary Supreme did not state that opinion question person under the reversed, Kyne exception employer employee 79 S.Ct. of fact. Most held to be not of fact. What appendix. had held that opinion stated: to conduct a Appeals employment Greyhound. its of control Greyhound underlying a The Court have been review of is an em- sufficient In is essen- Supreme and that jurisdic- question of fact” Court’s stating factual orders clearly status. of the Kyne, relied ques- Grey- law, pro- had All 188 joint employer elude Tonche was not a that employees of defend- plaintiffs

that were with the Since this con- defendant. Court is whether the facts question ant. The sole employee cludes Tonche was an that for an “em- satisfy statutory the standard defendant, the possibili- we do examine employee under the FLSA. Since ployee” ty joint of a employer status. law, a matter status was established as submitting court erred in it to the district hired Defendant maintains that he jury. the Tonche independent as an contractor

chop plaintiff cotton13 and that field therefore employees workers were Employee Status determining an sta Tonche. individual’s In order to resolve the question “employee” meaning tus as within the employees whether of de FLSA, however, the intent fendant, this Court will examine the rela he attaches the relation the label that tionship between Tonche and defendant. If the ship meaningless unless it mirrors defendant, Tonche was an employee of relationship. “economic realities” of plaintiff field workers were also defend McComb, Corp. Food v. 331 U.S. Rutherford employees. ant’s Even in the event that 1476, 722, 1473, 1772 67 91 L.Ed. S.Ct. contractor, Tonche were an independent 143; Tehco, (1947); v. at Donovan 642 F.2d could Court conclude that Tonche was a Co., Usery Equipment Pilgrim v. defendant; joint employer with the in this 1308, Cir.), denied, cert. 429 (5th U.S. instance, the field workers would still be 82, (1976); L.Ed.2d employees of defendant. v. Hodgson Co., Transportation Mitchell v. Strickland Brand, & Griffin (5th Cir.1955). Employ denied, Cir.), cert. 94 S.Ct. ee/independent contractor under fed status 38 L.Ed.2d 51 hypothetical In this legislation eral welfare is determined social situation, could, course, the Court con- light legislation:14 of the purposes of the Grey- regarding underlying Greyhound possessed factual issues whether sufficient that And “employer” employer re- an still of control to be as an could indicia hound’s status issue, essentially ques- despite unlike the factual that Floors main a determination Kyne, depended solely upon independent independent con- tion in which contractor — Kyne excep- necessarily of the statute. construction mean that does not tractor status one, to be person responsible is a narrow extended tion permit is the sole contractor plenary review district court of Board in con- employees Placed under Act. proceedings in certification whenever orders text, “essentially a factual issue” statement erroneous assessment it can said that an Greyhound not undermine this Circuit’s does particular before the has facts Board as to conclusion decision to review the ultimate comport does not led it to a conclusion which question as a status under law. review in such a situa- with the Judicial law. by Congress been tion has limited argues that he contracted 13. appeals, courts of and then under chop furnish his cotton —not to Tonche to 9(d) explicitly laid down conditions choppers. verbal distinction with represents This cotton Act. attempt nothing more than an Greyhound, 84 S.Ct. at 899. attachment; significant the distinction is label only Furthermore, argued Greyhound had reality mirrors the economic as it statutory pow- insofar its Board had acted in excess of Tehco, relationship. See Donovan Greyhound found an em- ers when it surprisingly, admit- hired, paid, F.2d at Not

ployer who were get expected transferred, independent Tonche promoted ted at trial that rejecting chopped not do (Floors). Greyhound’s could cotton himself, get attempted argument, clarify Supreme chopping he had all Greyhound’s possible chop. sta- others to by any as to unaffected determination tus was Rutherford, U.S. Supreme 331 14. independent of Floors as an contrac- the status 727, explained purpose at 1475 67 S.Ct. tor, i.e., indepen- was an that Floors of the FLSA: preclude the did not existence dent contractor passed concerning Greyhound’s Standards Act questions The Fair Labor factual lessen, then point by Congress seemed so far as employer. The Court’s status as an

189 “[E]mployees who, are those who as a but matter of rather to those as a matter of reality dependent upon economic are reality, economic are dependent upon the business to which they render service.” they business to which render service. Birmingham, Bartels v. 126, 332 U.S. Although defendant acknowledges 1547, 1550, 91 (1947).15 S.Ct. L.Ed. 1947 As the common-law control test is not conclu- this Court noted in Fahs v. Co-Op Tree-Gold sive, argues defendant the common- Growers, 40, Cir.1948): law control factors are material in defining decisions, Under these the act is intend- an individual’s status for purposes of the protect ed those whose livelihood is Defendant places great weight FLSA. on dependent upon finding employment various specific control elements —defend- the business of others. It is directed to- ant did not many decide how or which ward those who themselves are least able fire,16 workers to hire supervise did not in good times to make provisions for their work,17 the details of their did not furnish needs age when old and unemployment hoes, not provide transportation, did did may cut off their earnings. The statuto- not decide when the workers arrived at the ry coverage is not limited to per- and, those fields and when they quit, defendant sons whose services subject are to the argues, did not their rate of determine direction and control of their employer, pay.18 practicable, they right the distribution in commerce of make sure that fields and goods produced under subnormal labor con- he would often doublecheck Tonche’s count of ditions. An effort to eliminate partic- low the number of workers the fields on a long day. hours was the method chosen to ular Defendant admitted that it is the arising free commerce from the interferences farming nature of the business that the farmer production goods under conditions depend has to on his workers —the farmer can- that were detrimental to the health and well- supervising not be in the fields at all times. being sought of workers. It was to accom- plish purpose by pay the minimum argued 18. Defendant at trial that Tonche set provisions require- maximum hour and the wages. the workers’ Defendant testified that employees’ ment that records of services be “figure he asked Tonche he how wanted to it” kept by employer. replied figure $1.65 and Tonche he would (in 1977). hour Defendant also testified that he interpreting 15. The critical decisions the term agreement had no with Tonche as to how much “employee” legislation in federal social welfare pay Tonche would the workers and that de- Hearst, 111, are as follows: NLRB v. 322 U.S. fendant had no idea how much Tonche did in 851, (1944) (for purposes 64 S.Ct. 88 L.Ed. 1170 testified, fact ever, them. Defendant also how- Act); of the National Labor Relations United Silk, 1463, follows: “We farmers in the com- [the States v. munity] paid (1947), them the same amount all over Birmingham, L.Ed. 1757 and Bartels v. place hoeing. community-wide, All it 332 U.S. 67 S.Ct. 91 L.Ed. 1947 they (1947) (for purposes employment was the same.... I know what [the taxes on employers Act, Security farmers who were customers of defendant’s under the Social amended); they pay. They I Corp. do. know what ask bank] and Rutherford Food McComb, paying, me what I am and we are all the U.S. 67 S.Ct. same.” L.Ed. (for addition, (1947) purposes gave of the Fair defendant testified that he Labor Act). money day according Standards to Tonche for each working number he of hands had listed as on 16. Defendant conceded at trial that he had the day they and the number of hours worked. authority to fire a crew of workers. is, multiplied That defendant the number of times the number of hours worked workers Although supervise did Fridays gave $1.65 on times an hour and minor, tasks, regular the record demonstrates Tonche one check for the total number of hours significant that he did exercise control over the aspects Moreover, defendant testified as fol- worked. farming operations. lows: located; showed Tonche where the fields were You also hired friends of the wives Q. determined which fields would be cotton, order; your gave hoe didn’t full-time hands to hoed and in what regarding instructions you? chop which weeds to and which to girl they ground; have a A. Sometimes would leave he determined when the job. workers had them. finished Defendant went to you paid $1.65 in 1977? the fields three to four times a week to check And them Q. up the same. Tonche and the workers. He would A. I them 300, the criteria” determi- focusing on and isolated con- “ultimate for the

By selected factors, however, sight trol loses of status employee nation are found activity. the of the whole of circumstances presence the Act. The of some purposes of Rutherford, 730, 67 at 331 U.S. S.Ct. sta- independent indications of 1477. This Court has on several occasions tus, however, the focal must obscure even the employment though found status is in inquiry the individual whose status —is ” defendant-employer no control over had person “kind of meant to be question the relationship, of the aspects e.g., certain 301. protected by the FLSA? Id. at fire, hours, right to set hire and deter- presence The certain of con- elements wages. (find- 527 F.2d at 1312 Usery, mine necessarily trol is not determinative. the total context of the rela- ing “[i]n exposed Whether was “to the evils tionship right neither the to hire designed to eradi- statute [FLSA] right nor the set hours” indicated such cate,” 300, hinges upon see id. at whether of control as would lack [defendant] farm- dependent upon he was laundry that the operators show inde- Indeed, ing operation. touchstone of “[t]he contractors); Mednick v. pendent Albert reality’ analyzing possible ‘economic in Inc., Enterprises, 508 F.2d employee/employer relationship pur- for Cir.1975) (stating that “the courts have had Weisel, poses dependency.” of the is difficulty in finding employment little sta- ques- at 1189. The determinative though the could hire employee tus others person “dependent tion is whether discretion”); Fahs, his own within upon employment in the business of (concluding at 43 that contractors at de- Fahs, 166 F.2d at Two factors others.” packing were employees fendant’s house critically in emerged significant have even though defendant had no (1) answering question: specialized to control this how right employees, the number of is, worked). (2) of the work whether they their the hours As nature and Mednick, stated in “in F.2d at the individual business for himself.”19 you paid (1) specialty job And Right. in $1.75 them 1978? The workers did a Q. production A. line. fact, you (2) vary paid your terms in all The contractual did not cotton hoers Q. ’78, way an- $1.65 in ’77 material as one worker succeeded $1.75 and isn’t that true? other. (3) A. That’s true. believe, premises equipment your though, deposition you The and were those I Q. you proprietor. of the person said that sorry there one felt (4) organiza- The workers had no you given “business for a little bit and had her tion” could offer their services to others. $2.00 an hour? (5) proprietor’s manager kept Well, close may there A. be. watch the workers’ activities. over youDo recall that? Q. (6) profit workers could from “efficien- IA. won’t doubt but what that is true. I cy,” piece- efficiency but it was the right. think that’s I think I have. I don’t worker, “enterprise of an that actu- not that offhand, remember it who it was. But initiative, ally depended upon for success special daughter-in-law have a or son-in- indepen- judgment foresight typical something you give $2.00 law or to. I dent contractor.” don’t know. maybe I $2.00 I don’t know. Rutherford). Mednick, (citing at 300 somebody. “(1) per- The Silk criteria are as follows: Assuming, arguendo, the existence of an is- working relationship, (2) manency concerning of fact sue who set the workers’ loss, opportunity profit (3) investment wages, this Court come to would still the same material, control, (5) (4) degree jury conclusion if the even resolved Tehco, 642 skill.” Donovan v. individual’s issue favor defendant. Silk). Obviously, (citing F.2d at 143 some Rutherford, overlap might compan- not be at 1477 and its these criteria some S.Ct. case, Silk, upon depending particular ion United case. States v. relevant 1463, 1469, (1947) (dealing possible it This stated that is not 91 L.Ed. Court has meaning weight employee assign specific purposes with these factors a each of security necessary taxes), social exist set out criteria for distin- it is not that evidence guishing employees independent respect factor order to deter- contrac- to each relationship employment ex- tors. The are as mine Rutherford criteria follows: whether Inc., Brothers, to harvest a growing R. the season in order Cowley Mitchell v. John & crop. chopping In addition to (5th Cir.1961). good The first cotton F.2d cotton,20 the workers “reg- supervised Tonche in to whether the individual factor looks field, some, provided transportation the of a rou- essentially tasks ularly performs were of the num- what records there kept the phase that is a of tine nature and work hours, and received of workers their a ber busi- operations particular of that normal every Friday, check from defendant him so, ordinarily regards the Act ness.” If the earnings out the to individual meted unques- Id. The record employee. as an All of tasks were routine. workers. these of demonstrates the rote nature tionably therefore, inquiry, points strongly The first involves chopping Tonche’s work. Cotton and there- status for Tonche employee to tak- task: piece equipment one of and one for the field workers. fore of out chopping hoe and the weeds ing even is such a task that simple cotton. It inquiry in factor the “focal The second is aptitude, it —it no requires children can do “whether the process”: the characterization skill, experience. training, no and no no not, matter of eco- is or as a individual Moreover, that the evidence demonstrates fact, himself.” Dono- in business for nomic of chopping merely phase was cotton Tehco, 642 F.2d at 143. record van v. of cotton operation defendant’s Tonche had any- does not indicate that .normal here consti- farming chopping business. Cotton independent could thing that be called economic part “integrated of tuted distinguished personal la- business of cotton. growing devoted to unit” was with only Tonche an illiterate bor.21 1476; Rutherford, 67 at 1475 & could not schooling. He read years two 264; Fahs, at Shultz, at 166 F.2d 432 F.2d English; either or Spanish write in or grow it Chopping the cotton made how to write his name and num- only knew better, to har- produce kept and made it easier how to He “rec- figure. bers and integral Chopping the cotton was an workers vest. of the number of field ords” farming opera- phase parts of defendant’s entire on they the number of hours worked Although chopping brought season sacks which he defend- paper tions. ant’s, mid-August, “records” were from mid-June to bank. Some of these runs record Tonche’s book recurring perma- and of relative later transcribed into during daughter. son workers every year by has to be done Tonche’s nence —it Inc., Industries, Hickey the em- the Government had established v. Arkla that ists. by (5th Cir.1982). ployee tend to individuals neces- The cases status these inquir- crystallize sary preponderance basic evidence. the criteria into the two Indeed, case, plaintiffs Med- the checks ies listed above. this Court introduced instant nick, against placing given by at cautioned to Tonche were emphasis on and Silk too much the Rutherford notebook in 1978 as well as defendant’s criteria, thereby losing sight daily of the ultimate on a basis defendant had recorded which (the dependency question). by criteria imparted him Tonche— information the number hours the number hands and See, 3, supra. note they sufficient This worked. evidence producing evidence that the burden of shift Tehco, 21. This Court Donovan v. for himself in fact Tonche was in business that, given exceptionally broad held totally carry failed to defendant. FLSA, employee in the evidence definition regard before to the issue this burden Secretary of Labor that introduced independent Tonche, as an Court —whether question were on the defendant- individuals businessman, engaged in the business of employer’s payroll to shift was sufficient offering defendant and crews of producing workers evidence to defendant. burden added). Assuming, growers, (emphasis transcriptions (The other evidence consisted of showing arguendo, payroll the fact the relevance of on defendant’s records based winter, junked likewise of hours each individual worked cars the number pay.) producing wholly carry This Court defendant and rate of failed to his burden dependent little that since defendant introduced on concluded that Tonche was evidence operation show the individuals farming or no evidence to for his liveli- payroll “in for them- fact business its selves,” hood. found should have the district court nizable or consistent crews in in Tonche’s book nick- were often listed “no ex- day-to-day. families. Tonche had number from names hands varied in distinguish perience qualifications short, little to transfer but Tonche had general run workers.” See from the own labor. id. at 1314. See Mednick, Although Tonche 508 F.2d at 303. is the fact that particular importance Of the field control over did exercise some enough for pay defendant did not Tonche workers, no “economic sub- there was mini- pay the workers Tonche himself to id. at 302. power. stance” See behind for impossible it was therefore wage; mum minor, supervised rou- The fact that Tonche comply Tonche to with FLSA. See into an “bootstrapped tine tasks cannot be Tonche, Mitchell, 109. as an 292 F.2d at independence.” appearance of real See capable doing was not entity, economic Neither minor Usery, 527 F.2d at 1312. F.2d at Usery, elsewhere. business See work, even if the keeping record nor rote reality The economic of the situation 1315. industriousness, is indicative requires upon were dependent was that the workers nonemployee status. independence pay them the defendant —not Tonche —to judg- Any involving 1314. decisions Id. at dependent were wage. They minimum ment, initiative, were made or basic control growing cotton business— upon defendant’s defendant, Tonche did not by not Tonche. As this “business” of Tonche’s.23 any meaningful part of exert control over Mednick, F.2d at 303: Court stated that Tonche’s defendant’s business such entity. economic saddle a worker with “part” separate employer stood as a An cannot contractor, the rate of id. at 1312-13. Given independent the status of hour) there payment (by and method of its duties under thereby relieving itself of for Tonche to make opportunity was no real F.L.S.A., by granting some the one sim- any profit Except or loss. reality where the economic powers ple virtually indestructible instrument and never has been the worker is not investment or risk utilized —the hoe—all which the independently in business provided defendant. capital operate. would have him in hoes was “minimal Tonche’s investment fifty-four year old illit- approximately This investment comparison with the total cannot be said to be an chopper erate cotton land, neces- heavy machinery supplies any meaning- independent businessman Real v. Dris- sary growing” cotton. See ful sense. Associates, Inc., Strawberry coll point One last is in order. Cir.1979). Tonche’s relation- registration as a rely cannot on Tonche’s with defendant was of limited duration ship to establish inde “farm labor contractor” nature, permanent recurring every but of status for Tonche for pendent contractor Significantly, Tonche did not work year.22 FLSA, insulating thereby purposes any grower workers for other provide As requirements. himself from here does not than defendant. The record Valley in Marshall v. Presidio the Court supply any indicia whatsoever of business Inc., (W.D. Farms, F.Supp. operated by whereby Tonche offered Tex.1981), interpretation “This stated: Indeed, growers. crews workers other evasion of the re permit wholesale would as an Tonche did not recruit workers Nothing in the of the F.L.S.A. quirements Instead, independent would. businessman suggests Act Farm Labor Contractors workers, were called Hispanic, who that Act to the exclu apply must this court inquire Tonche from Texas to about South The answer to the recog- sion of the F.L.S.A.” operate work. did packing has concluded defendant. Since The work done house con- defendant, Fahs, employee (determined employees) we tractors to be that Tonche was relationship separately also discuss the 166 F.2d at seasonal. do not employees to defendant. course, support the con- these facts also Of clusion that the field workers question of employee attempt status lies in the “eco- more than an to exculpate himself nomic realities” of the In the situation. Tonche in the portraying guise of an hand, case at those contractor, economic realities allow independent by attaching a label only one conclusion: Tonche was an em- Jiffy June standard mandates to him. The ployee defendant. rejection of defendant’s argument: good violation committed in faith can in- B. Willfulness deed be “willful.” Id. at 1141. 255(a)24 Section of the Portal-to- Secondly, argues that his viola- provides Portal Act a three-year statute of tion was not willful because. he had no limitations for willful violations of the knowledge applicable. FLSA was FLSA.25 The standard for willfulness was Jiffy June standard require does not Coleman v. established in by Circuit that defendant know that his actions are Farms, Inc., Jiffy June 1139, 1142 governed by the It requires FLSA. denied, cert. (5th Cir.1971), 948, 409 93 U.S. employer have an “awareness of 292, 34 (1972). S.Ct. L.Ed.2d 219 This Court possible applicability” of the Act. In- June Jiffy stated that the test is whether deed, this Court has unequivocably rejected employer knew was in the argument knowledge” of “lack of of the Id. This standard requires that picture. applicability of the FLSA: “An ostrichlike employers nothing have more than “aware ignorance cultivation of has never been con- ness possible applicability of the sidered a liability defense to for willful Id. FLSA.” If an employer merely sus Heard, of the Act.” Brennan v. violation pects might Act, that his actions violate the 1, (5th Cir.1974). 3 the violation is willful. The Court ex This Court turns to the record in the plained necessity for this standard as instant case to determine whether defend- follows: ant had reason to suspect FLSA was “in legislative The entire history of the picture.” testified that he 1966 amendments of the FLSA indicates banking had been business for fifty- a liberalizing part intention on the five years. position Defendant had held the Congress. Requiring employers to have of President of the First Bank State more than possible ap- awareness Abernathy for twenty-six years and owned plicability of the FLSA would be incon- stock in the president bank. As sistent with that intent. bank, defendant worked in that business Id. week; five days a he was aware of the wage minimum law and what the appeal, On minimum makes two ar 1976,1977, guments. wage First he was in and 1978. Defend- contends that he had no reason always paid to believe the ant admitted that he had FLSA was “in the his picture” because he bank employees wage, pro- hired Tonche as an in minimum but dependent and therefore as tested that he did not know the minimum sumed were employees wage of Tonche. to his farm applied workers. Defend- argument This is without merit. particular It is little ant used a legal law firm for 255(a) provides cept arising 24. 29 § U.S.C. as follows: that a cause of action out of a may willful violation be commenced within 255. Statute of limitations years three after the cause of action accrued. Any 14, May action commenced on or after 1947, any to enforce cause of action for un- request 25. Plaintiffs in this case do recov- paid wages, minimum ... under the Fair ery unpaid wages years for three back. The 1938, amended, Labor Standards Act of significance of the willfulness issue relates to (1) plaintiffs’ wage whether 1977 claims are (a) if the cause of action accrues on or (a two-year bar barred statute would May after be commenced 1947 — 14, 1978), prior February claims that accrued years within two after the cause of action (2) plaintiff Reynaldo whether Arriolas’ accrued, every such action shall be for- (added plaintiff February as a 1981 ever barred unless commenced within two complaint) wage amended claim is barred. years accrued, after the cause action ex- hours, at his employer even their does so advice, testified that he had never but escape keeping He cannot the record peril. attorneys his whether his inquiry made by delegating the Act provisions of covered the mini- employees farm were Mitchell v. employees.” (citing his duty to wage mum law. (W.D.Ark. F.Supp. Reynolds, testimony, this record Given Furthermore, 1954)). must de “an ostrichlike cultivation may not assume are cover employees cide at his which peril urge it as a defense. ignorance” George Lawley Corp. ed the Act. & Son will not shield a de- ignorance Good faith South, (1st Cir.), cert. de 140 F.2d 439 “fur- obligation to make fendant from nied, 88 L.Ed. exact and to “determine the inquiries” ther statutory obligation.” parameters of his Pottery Mount Clemens In Anderson v. June, Jiffy the defendant had See id. 1187, 1192, Co., 66 S.Ct. U.S. and secured advice that sought even (1946), speci- the Supreme L.Ed. 1515 exempt from the employees FLSA. where the proof the burden of cases fied so, June, 458 F.2d at 1141-42. Even Jiffy to maintain the records employer has failed Here, held to be willful. his violation was by the required FLSA: the fact that defendant knew of the exist- situation, em- we hold that an such wage law and ence of the minimum out his burden if he ployee has carried minimum to his bank com- fact performed that he has in proves Jiffy under the pels a of willfulness improperly for which he was com- work June standard. produces and if he sufficient pensated amount extent evidence to show the and C. Number of Hours Worked just as a matter of of work keep to records of Defendant failed The burden then reasonable inference. by plaint the individual the hours worked the to come forward employer shifts to required by 211(c).27 iffs26 U.S.C. § amount precise with evidence of the of places employer This section on the the neg- with evidence to performed of obligation keeping of accurate records ative the reasonableness of the inference by employees; the hours worked the employee’s evi- to be drawn from employer statutory duty cannot transfer his employer produce If the fails to dence. Cockrell, employees. Goldberg to his v. evidence, then award such the court Cir.1962). (5th 812 n. 1 though even damages employee, only approximate. the result be argues appeal on that his fail- mitigated by ure keep ap- to records Fifth cases have A number of Circuit See, e.g., Skipper were kept plied fact that Tonche records which this standard. Dairies, Inc., 419-20 Superior introduced into evidence. Tonche’s records Motors (5th Cir.1975); Brennan v. General to clearly incomplete and insufficient Acceptance Corp., 482 F.2d of the satisfy keeping provisions the record Shultz, Cir.1973); 432 F.2d at 261. id., Moreover, Goldberg, Act. this Court pre- to nothing standard, stated that “while there is this the Court formulating delegating penal- to his not be employer employees vent an from was concerned that comply by employer’s an failure duty keeping a record ized hours, by by wages, only kept and other were his him and of the 26. The records weekly paychecks employment practices to Tonche and notebook conditions ' tally him, by preserve which contained a of the hours worked such and shall maintained (listing and the time, each week the number of hands periods of and shall records for such worked) number of hours in 1978. reports therefrom to the Adminis- make such by prescribe regulation or trator as he shall 211(c) provides 27. 29 as follows: U.S.C. necessary appropriate for the order as (c) Every employer subject any provi- chapter provisions of this enforcement chapter sion of this or of order issued regulations thereunder. or orders make, keep, pre- chapter under this shall persons employed serve such records statutory duty with its to maintain accurate the reasonableness of the inferences evidence.29 plaintiffs’ records: drawn employer kept When the has proper court, however, properly failed to employee may and accurate records the proof. the burden of The court’s place easily securing discharge by burden the jury regard instruction to in this production of those records. But “it duty is the of an employer keep the employer’s where records are inaccu- maintain accurate records of the num- rate or can- inadequate employee and the employee ber hours works for offer convincing substitutes a more employer said and it is not the duty solution, problem difficult arises. employee keep such records.” however, penalize is not to the employee object Plaintiffs did not to the court’s by denying any recovery on however, instruction. The of proof, burden ground that prove unable to major “always importance,” Sheppard precise extent uncompensated work. Palmer, Federal Credit Union v. place Such result would premium (5th Cir.1969) and this Court is employer’s keep failure to rec- proper persuaded placement that proper in conformity statutory ords with his proof burden of in this case could have duty; it would allow amade substantial difference in the deter- keep employee’s benefits of an labors mination of the number of hours worked due paying compensation without as con- plaintiff. each This Court con- therefore templated by the Fair Labor Standards charge cludes that district court’s con- Act. error plain stituted and reviews the instruc- Anderson, 66 at 1192. appeal despite tion on plaintiffs’ failure to object the trial level. Because the court case, plaintiffs met instant properly place proof, failed to the burden of proof demonstrating their burden of reverses and remands for a new they performed work and were trial on the number of hours worked compensated in accordance the stat plaintiffs. ute. plaintiffs regarding Thirteen testified they the hours and members their fami C. Conclusion lies worked. Plaintiffs’ witness Walter Johnston, This Court has that Tonche statistics, concluded a Ph.D. candidate in an employee was of defendant that and calculated a minimum and maximum num plaintiffs therefore were defendant’s em- plaintiff worked, ber of hours basing each that defendant’s failure to ployees, plaintiffs’ testimony. his calculations on willful, wage minimum and that payments Defendant calculated his to district court’s instruction which erroneous Tonche based on the rate man per of $1.65 specify proof failed to neces- burden per hour in and man hour in $1.75 a new trial on hours sitates the number of judicial The court took 1978. notice of the by plaintiffs. worked the individual wage years: minimum in these two $2.20 an hour in 1977 and hour in 1978. $2.65 The II. FLCRA Claim point, At burden proof that shifted to prove precise amount The this Court must con- issues address plaintiffs performed negative28 cerning ques- the FLCRA claim involve the “negative” by 28. defines as “to Plain- Webster’s follows: checks Tonche. falsity disprove” testimony, however, already demonstrate the of: or “con- tiffs’ own had es- tradict.” Webster’s Third New International incom- tablished that Tonche’s records were Dictionary (1976). Otherwise, testimony by plete. defendant’s (who planted, ploughed, and fulltime hands case, instant efforts to merely general allegations harvested) made plaintiffs’ impeach testimony were minimal. lazy misrepre- that the field workers were and attempted to show that the names they worked. This sented the number hours appear did of certain Tonche’s any testimony identify particular work- did not records that Tonche’s record books er workers. paid accounted for fewer hours than were for term. The statutory definition was a farm labor Tonche tions whether labor contractor viola- defines a farm whether defendant’s FLORA contractor fee, who for a either “any person, was intentional. of the Act follows: tion person, of another himself on behalf for solicits, hires, furnishes, or recruits, trans- Fee Issue A. The (exclud- migrant workers more ports ten or farmer requires a The FLORA family) of his immediate ing members (1) verify uses contractor who year for inter- any calendar any one time him30 hiring before registered contractor 7 U.S.C. agricultural employment.” state and hour records of (2) maintain defend- 2042(b). period when During § contractor’s members the individual Tonche, regis- Tonche ant dealt with Defendant made certain crew.31 farm labor con- the DOL tered with registered as a farm labor con Tonche was 2043(a). De- pursuant to U.S.C. § tractor no but made effort to maintain tractor Tonche year that each fendant conceded statutorily-required payroll records on him, to show he asked Tonche worked for Special jury’s response The plaintiffs. registration card32 before him Tonche’s did not fail to obtain Issue 8 that defendant working and before Tonche first started sup no payroll and maintain records finds paying him.33 in the evidence. port ascertaining question de- appeal on question whether. Tonche worked is whether within Tonche’s status fendant used a farm labor contractor 31. U.S.C. 2050c 30. U.S.C. bor Section ber of units wages, farm labor contractor worker kept each per workers a ment, labor ords engaged in interstate shall show recorded on such laborers unless he first determines maintain farm labor contractor such shall from the payroll gaged another section obtain effect at the time he contracts with 2050c. § Any person who is furnished (c) (e) piece provided unit of time shall be recorded on the farm labor contractor containing respect No in the event he performed contractor. payroll provide 2045(e) provides either on his own behalf in interstate from the contractor and maintain rec- records, 2045(e) of such person, rate employed person all § Secretary Recordkeeping for each worker total 2043(c) provides a farm labor contractor to him the contractor under net shall— of time payroll basis, person period, to each and for workers the information migrant keep shall earnings. this title. provides on time records. agricultural employment that is the number of the rate records under Federal employed all a engage pays possesses payroll that agricultural employ- migrant workers withholdings as follows: person shall also migrant “[e]very farm la- in full force and per as follows: basis, In addition he required the services of records which addition, and the rate employed supply any migrant unit a certificate on worker required earnings in the num- behalf of law, the farm that the workers units of shall be to be farm shall en- for 33. Defendant testified contractor independent purposes of the FLSA. from the the labor A. A. which A. information. labor contractor scribe an vide each such to him Q. A. Q. Q. Q. with whom such statement The fact that correct? worked for me. with, number inside this card. asked Mr. Tonche and 1978? in ’78? his such Yes.... When he showed Okay. Yes, And Inside this? I Well, migrant card, asked sis withheld. The (including and migrant him if he you identification of such appropriate amount he received that’s showing happened didn’t he? And that he deals in a him if he had a card ^[*] he said wrote worker) Okay. first started a statement of when he started worker. worker, worker sums received had his ^[*] all sums withheld down the as follows: yes, cover form And happened in both 1977 every year status you card does carried a Secretary may pre- ^[*] account of the labor and the and capacity as a farm with an itemized you He shall also —he card, and he working for ’78 he showed recording upon on account did ^[*] all sums showed on behalf of registration purpose for farm labor working, isn’t book, that when that pay him % by confer said, such paid pro- him you you me I

197 34 required by “for a fee” as 2042(b).34 section Tonche’s hourly solely for chop cotton;35 moreover, if ping even Tonche’s term “fee” as used Act “includes hourly wage compensation were viewed as any money or other valuable consideration chopping, for it would still constitute a paid promised paid person to be to a for meaning “fee” within the the Act. a services as farm 7 labor contractor.” “chopping job” Tonche’s existed virtue 2042(c). is undisputed U.S.C. It § defendant, crew furnishing i.e., of his a for Tonche received serv consideration for his Tonche furnished defendant with a crew ices. The record evidence demonstrates because of defendant’s offer of a steady that Tonche received hour for his $1.65 chopping job for Tonche his family. services in 1977 and an hour in 1978— $1.75 wages Tonche’s constituted a “fee” the same amount that defendant al paid services; a Tonche was farm labor contrac most all hands. FLORA regulations meaning tor within the statute. make clear that salary suffice as a “fee” when person to a for services as B. Violation Intentional a farm labor 29 contractor. C.F.R. 41.5 § 2050a(b) provides U.S.C. for ei § (1982). difficulty This Court has no damages ther actual or liquidated dam viewing consideration received ages up for each intentional $50037 a Tonche as “fee” for the management and violation of the Act.38 term “intention supervision of the workers. The record re al” within this section means “conscious or veals agreement no evidence of an deliberate” a require specific and does “Yes,” down, put interpretation and that’s what we bor contractor. Such an would ’78, because it was ’78. be inconsistent with the nature of remedial Okay. registration Soliz, You num- (5th 1980) wrote Q. Act. 615 F.2d at 275 Cir. (stating ber down? broadly that the “Act should be con Yes, put I A. this down here. nature”). strued because it is remedial in Al lowing compliance with the Act to rest on the plaintiffs’ When district court denied agreement farmer’s characterization of his n.o.v., judgment motion for the court stated (he farm labor contractor hired the farm “[rjeasonable minds could have differed task, perform labor contractor to fur compensation to whether Tonche’s constituted necessary perform nish the workers for the recruiting migrant furnishing a fee for task) permit ance would wholesale eva payment per or a workers services he sion the Act. hourly paid formed as an laborer. The district court, however, submitting ques erred in requested 36. Plaintiffs in the instant case have tion of a farm Tonche’s status as labor contrac liquidated damages. jury. tor to the no There was unresolved issue undisputed of fact—it was re dispute among 37. There is some district courts ceived consideration for his services. Whether plaintiff as to whether a court must award each this consideration the “a constituted fee” within per $500 violation or in its discretion statutory question definition is a of law. up per Espinoza $500 award violation. See Arc, Inc., 1217, See Alvarez v. Joan of 658 F.2d Stokely-Van Inc., 535, Camp, 641 F.2d (7th Cir.1981) (treating 1220-21 fee issue overruled, (7th Cir.), Arc, Alvarez v. Joan of question law); Marshall v. Coastal Grow Inc., (7th Cir.), 658 F.2d cert. dis Ass’n, (9th Cir.1979) ers 523-24 missed, L.Ed.2d (treating question law); the fee issue as a position espoused by The sounder Plunkett, Soliz v. Cir. Arc, the Seventh Circuit Joan of 658 F.2d at 1980) (holding that the issue of whether 2050a(b) permits 1224 that court a district putative farm labor contractor mi “furnished” liquidated damages up $500 to award of to for grant question workers to the was a farmers of Act. each violation of the law). 2050a(b) provides pertinent 38. 7 Indeed, U.S.C. argument § defendant’s Tonche that part as follows: hourly wage chopping for his labor cotton, furnishing respondent not for mi- with If court finds that has grant cotton, intentionally any provision workers to hoe the reminiscent violated of this argument “employee” chapter regulation prescribed of his on the issue under hereun- der, supra, Surely damages up claim. FLSA See note 13. it award to includ- Congress application ing equal could not have intended to the of actual amount amount violation, depend damages, of the FLCRA to on how $500 the farmer for each or other agreement equitable characterizes his with la- the farm relief. 198 him, Arc, he asked working Tonche started Joan of

intent to violate the Act. “to if Tonche had a card for an inten- F.2d at 1224.39 standard referred to as that Tonche showed defendant has also been with” and tional violation which holds a identification “the common civil standard his farm labor consequences testimony the natural establishes person liable for card.40 Defendant’s Ramirez, acts.” DeLeon the existence of a law her that he was aware of (S.D.N.Y.1979) (stating F.Supp. carry to requiring farm labor contractors adopted interpre- paid. the courts have to cards in order be identification purposes the remedial tation because of standard of section intentionality Under the Act). is held liable for the 2050a(b) defendant consequences of his acts. Defend- natural intentionality standard of Applying this' testimony reveals that his failure ant’s own case, this Court concludes to the instant records on the individual keep payroll to at trial estab- defendant’s admission intentional within the mean- plaintiffs was of section 2050c lishes that violation ing the Act.41 (failure payroll to maintain records the mean- was intentional within plaintiffs) C. Conclusion 2050a(b). ing response section concluded that the record attorney, This Court has plaintiffs’ questions by that defend- as a matter law both 1977 and 1978 when establishes admitted that upheld helping the farmworker reme of Arc In addition to 39. The Joan Seventh Circuit violations, require dy FLCRA the FLCRA that defendant’s the district court’s fell violation of the Act ments aid the farm worker under other feder “harmless technical” n within the meaning example, “intentional.” FLCRA interre term al statutes. For in that case was farm labor The defendant Fair Labor Standards Act lates with the (FLSA), specific (1976), pro have a intent to contractor who did not 201-219 §§ 29 U.S.C. FLCRA. His violation consisted of protections violate the important and remedies vide registration inadvertently applying for requires Although all farmworkers. April although DOL the DOL until payroll agricultural employers to maintain Employment had the Texas approved Commission earlier showing the hours worked records migrant recruitment of paid, 211(c); Kept id Records To Be § began in late 1977. workers which Employers, (1980), By it § 29 C.F.R. 16.33 private mechanism no enforcement contains quoted testimony, supra, 40. See defendant’s employer fails maintain such rec if the note 33. rarely keep rec Since workers similar ords. own, farmworker minimum ords on their Concluding defendant’s violation was usually wage dis § actions under FLSA especially appropriate in intentional is view swearing matches in which farm- solve into fact farm labor contractor that Tonche’s great disadvantage. are workers exclusively performed activities were for de- FLCRA, however, requires contractors and “go Allowing operator to fendant. the farm payroll maintain the of contractors to users “could lead untouched” such circumstances pay prescribed FLCRA itself and records the Act.” See to the full scale evisceration of by any required other federal records roll DeLeon, F.Supp. (involving at 705 a failure (1976). Thus the statute 7 U.S.C. 2050c require the farm labor contractor per penalty can be $500 violation FLCRA validly registered). maintain FLSA to address the failure to used given appropriate also Such a conclusion is See, e.g., Cantu v. Owatonna Can records. ning obligation (by recordkeeping imposed that the 33,968 Co., (D.Minn.1980). 90 Lab.Cas. ¶ Act) the 1974 on farmers amendments proper pay maintain An forced to part attempt who use contractors was of an likely records is not to maintain roll records legislature provide a en- more effective guilty showing him be of minimum the Act. forcement mechanism for violations of Thus, he is deterred com violations. Sess., Cong., S.Rep. re- No. 93d 2d mitting In this manner FLSA violations. printed Cong. Ad.News in 1974 U.S.Code & rights created to enforce FLCRA functions 6441, 6443 & 6445-46. under, by, FLSA. but unenforceable Furthermore, has the standard this Court Note, Farm Labor A Contractor Defense particu adopted for an intentional violation is Act, Registration Tex.L.Rev. 537 n. larly light appropriate the interrelation ship and the FLSA—the between FLCRA rights conferred former can used enforce by the latter: contractor, ant used farm labor that de-

fendant violated FLCRA not main- UNION, LTV FEDERAL CREDIT payroll taining plaintiffs, records on Plaintiff-Appellant, that defendant’s violations were intentional v. meaning within the of the Act. re- On mand, the court SECURITIES, district must determine UMIC GOVERNMENT number of violations defendant has commit- INC. and Banco De La Nacion Ar ted,42 discretion, and may, in its award each gentina, Defendants-Appellees. plaintiff liquidated damages up to $500

per violation.43 SECURITIES, UMIC GOVERNMENT INC. and Banco De La Nacion This Court reverses pro- and remands for Argentina, Plaintiffs, ceedings not inconsistent with this opinion. REVERSED AND REMANDED. UNION,

LTV FEDERAL CREDIT HIGGINBOTHAM, Defendant. Judge, spe- Circuit cially concurring: No. 81-1533. concur, note, I but add this quali- United Court of Appeals, States but jus- fication for caveat. Our efforts to Fifth Circuit. tify appellate review attempting sepa- rate intertwined subsidiary facts ulti- 6,May mate inevitably conclusions cast surre- can, alistic shadows. The exercise and occa- does,

sionally do little more than serve as a

covering cape for the exercise of the trial

court function appellate court. That

transfer can assignments frustrate of insti- responsibility deny

tutional efficacy

the Seventh Amendment.

I do not here need the comfort of the Genuinely undisputed

exercise. tri facts at

al permit no conclusion but Manuel

Tonche was Givens’ employee, Ercell or that

Givens’ conduct was wilful under Coleman Farms, Inc.,

v. Jiffy June 458 F.2d 1139

Cir.1971), denied, cert. 93 S.Ct. 34 L.Ed.2d 219 requires deciding liquidated 42. Section 2050c to main- on the amount payroll violation, damages per tain both FLCRA records and FLSA to award the district remand, that, keep although plain- records. On the district court must court should in mind prove out-of-pócket decide whether defendant’s failure to maintain did their tiffs losses on claim, clearly they prejudiced by these records constitutes one more viola- FLCRA tions. defendant’s failure to maintain records in their ability to establish their FLSA claims.

Case Details

Case Name: Paulina Castillo v. Ercell Givens

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 6, 1983

Citation: 704 F.2d 181

Docket Number: 81-1520

Court Abbreviation: 5th Cir.