OPINION
Plaintiff, the Secretary of the United States Department of Labor (DOL), sued Defendant Darryl Howes, d/b/a Darryl Howes Farms, alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 U.S.C. § 1801 et seq.
I. Background
A. The 2011 Harvest
Defendant has owned Daryl Howes Farms since 2009. (Def.’s Dep. at 4.) In 2011, Defendant grew 40 acres of cucumbers to be used for making pickles. (Id. at 6.) He sold all the cucumbers to a company owned by his cousin, Ron Howes, for $161,000. (Id. at 8,10.)
During the 2011 harvest, Defendant employed 38 migrant workers (the workers) to harvest cucumbers. (Id. at 30.) Of those workers, 26 had worked for Defendant during the previous year’s harvest. (Id. at 31-34.) Although Defendant generally expected workers to work for him exclusively during the cucumber harvest, six of the 38 workers worked additional jobs during the harvest. (Id. at 151-53.) One of the workers worked on the farm where he lived throughout the harvest. (Id.) Five of the workers worked nights at a cherry plant during the first, one and one-half weeks of the harvest. (Id. at 153.)
Before beginning work, each worker received and signed an “independent contractor agreement” (the contract). (Id. at 21; dkt. # 17, Ex. L.) The contract provided that Defendant and the worker each would receive half the gross proceeds from the sale of the crop that the worker harvested. (Dkt. # 17, Ex. L.) The prices for the cucumbers were set by the buyer, and specified in an attachment to the contract. (Id.; Def.’s Dep. at 115.) All the workers accepted the rate in the contract, and none attempted to negotiate a different rate. (Def.’s Dep. at 115.) Under the terms of the contract, the most profitable cucumber to harvest was a “number two,” which is a cucumber between one and one-half inches long. (Id.)
Before the workers arrived, Defendant disced and plowed the cucumber fields, planted cucumber seeds, and fertilized the fields. (Id. at 44-47.) Defendant paid about $10,000 for the cucumber seeds and fertilizer. (Id. at 46.) During the harvest, Defendant made all decisions regarding fertilization and irrigation of the fields, and did not involve the workers in these decisions. (Id.)
Before the harvest began, the workers organized a lottery system to determine which plot each worker would pick. (Id. at 61.) During the harvest season, the workers determined the days on which they would harvest cucumbers. (Id. at 52.) On very rainy days, for instance, some workers would harvest, while others would not. (Id.) Defendant did not believe he had the power to fire workers, even if they chose not to show up for work. (Id. at 43.)
On days when they harvested, some workers brought their own plastic dish-washing gloves and wheelbarrows. (Id. at 140-41.) Defendant provided other supplies, including collection boxes for the cucumbers, hoes, and buckets. (Id. at 136.) Defendant also provided portable toilets and hand-washing facilities. (Id. at 137-38.)
Defendant kept track of the hours that each worker worked on a weekly basis. (Id. at 94.) Once a week, he asked the workers how many hours they had worked during the previous week and recorded this number. (Id. at 94.) He then used this number to calculate their hourly wage. (Id. at 120.)
B. The “Green Camp”
In 2010, the Michigan Department of Agriculture fined Defendant for providing substandard housing to migrant workers. (Id. at 155-56.) The parties ultimately reached a settlement whereby Defendant agreed not to provide migrant worker housing in the future. (Id.)
Before the 2011 harvest, Ron Howes told Defendant that there were empty units at the “Green Camp,” a property that Ron Howes’ mother owned five miles west of the cucumber fields. (Id. at 26, 158.) Ron Howes told Defendant that Defendant’s workers could rent the units, but that Ron Howes did not have time to fix the units before the harvest. (Id. at 158, 162.) Defendant agreed to authorize his employee, Mark Baccaria, to fix the units for rental. (Id. at 162.) Before the workers arrived, Baccaria replaced two refrigerators and some copper wire, performed some routine maintenance, and also cleaned some of the houses. (Id. at 176-77.)
The contract provided to the workers included an attachment stating that they could stay at the Green Camp for $25 per week payable to Ron Howes. (Id. at 24; dkt. # 17, Ex. L.) During the harvest, the workers living at the Green Camp reported problems with the units to Baccaria, who completed repairs and performed some routine maintenance. (Def.’s Dep. at 26; 178-79.) Defendant never went to the Green Camp during the 2011 harvest. (Id. at 26.)
On July 28, 2011, DOL Wage and Hour Inspectors (WHIs) inspected the Green Camp. (Enrico Decl. ¶ 19.) WHIs found, among other things, active bees nests, standing waste water, broken screen doors, unsanitary toilet facilities, broken showers, and debris throughout the camp. (Id.)
C. DOL’s Investigation
On August 17, 2011, the DOL conducted an investigation at Defendant’s cucumber fields. (Enrico Decl. ¶¶ 3-4; Jonaitis Decl. ¶¶ 3^4; Stewart Decl. ¶¶ 3-4.) Defendant asserts that this investigation was conducted as some sort of payback for his refusal the previous year to sign paperwork agreeing that his workers were employees. (Def.’s Dep. at 237; Def.’s Br. in Supp. of Mot. for Summ. J. at 9,18.)
When they arrived, WHI Amanda Enrico told Defendant that the WHIs would be conducting an investigation and explained the process to him. (Enrico Decl. ¶ 5.) After meeting with Defendant, the WHIs
About three hours later, Defendant began to get angry that the WHIs were still conducting interviews. (Def.’s Dep. at 200.) He wanted to figure out a way to get them to leave, so he called his friend, Dan Kilpatrick, who had a new camera, and asked him to come take pictures of the interviews. (Id.)
While WHI Enrico was interviewing a worker, Defendant drove up and parked about 15 feet away. (Enrico Deck ¶ 9.) Kilpatrick was sitting in the passenger’s seat holding a camera. (Id.) Although Enrico believed that it was a video camera, Defendant has testified that it was merely a digital camera. (Id.; Def.’s Dep. at 205.) WHI Enrico told Defendant that she could not record the interview, and Defendant responded that he would continue to take pictures and that the investigation was slowing down his workers. (Enrico Deck ¶ 11; Def.’s Dep. at 207.)
Defendant and Kilpatrick then drove up to where WHI Jennifer Stewart was interviewing Baccaria. (Stewart Deck ¶ 6; Def.’s Dep. at 207.) Defendant parked about five feet from where Stewart was conducting the interview. (Stewart Deck ¶ 7; Def.’s Dep. at 208.) Stewart, believing that Kilpatrick had a video camera, told Defendant that he could not videotape the interview. (Stewart Deck ¶ 8.) Defendant then gave the camera to Baccaria, and told him to document what was happening. (Def.’s Dep. at 210.) Baccaria then refused to answer Stewart’s questions, and Stewart terminated the interview. (Stewart Deck ¶ 8.)
Thereafter, Baccaria drove a forklift to where WHI Joseph Jonaitis was conducting an interview with a worker. (Jonaitis Deck ¶ 6.) Baccaria parked the forklift about 10 feet away from where Jonaitis was conducting the interview and took out the camera. (Id. ¶¶ 7-8.) Jonaitis terminated the interview because of Baccaria’s presence. (Id. ¶ 8.) Jonaitis then went to interview another worker, and Baccaria followed Jonaitis in the forklift. (Id. ¶ 9.) Jonaitis decided not to complete the interview because of Baccaria’s presence. (Id.)
Shortly thereafter, the WHIs in the field met and determined that they could not complete any more interviews. (Id. at ¶ 9.)
II. Standard of Review
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc.,
III. Discussion
This case is ripe for determination on summary judgment because there are no disputed issues of material fact. The record is comprised primarily of undisputed documents and the deposition testimony of Defendant. Although the parties disagree about how to characterize the facts, neither has argued that there are facts in dispute that would preclude summary judgment.
Plaintiff asserts that Defendant violated provisions of the FLSA that require employers to pay “employees” a minimum wage and to maintain records of hours worked. 29 U.S.C. §§ 206(a), 211(c). Defendant argues that the cucumber harvesters are independent contractors rather than employees, and that the provisions of the FLSA do not apply. Defendant further argues that, even if the workers were employees, they each received at least the minimum wage. Defendant does not dispute that he failed to maintain records of the daily hours for each of the workers.
A. The Workers ’s Affidavits
In opposing Plaintiffs motion for summary judgment, Defendant filed 11 affidavits from individuals that worked for him during the 2011 harvest. (Dkt. ## 33-35.) Plaintiff moved to strike those affidavits, arguing that Defendant never disclosed the names and contact information of the workers in his Rule 26(a)(1) disclosures or in response to Plaintiffs interrogatories, nor did Defendant supplement his disclosures with the information. Defendant did not respond to Plaintiffs motion to strike within the 14-day time period specified by the Local Rules. W.D. Mich. L. Civ. R. 7.3(c). Rather, Defendant waited until over three months had passed, and then filed a response opposing Plaintiffs motion. Plaintiff moved to strike that response at untimely.
The Court will grant Plaintiffs motion to strike Defendant’s response. The response was filed over two months past the deadline, without any explanation for its untimeliness. The Court will also grant Plaintiffs motion to strike the affidavits. A party that fails to provide information or identify a witness may not use that witness to supply evidence on a motion, unless the failure was substantially justified or harmless. Fed.R.Civ.P. 37(c). Defendant should have provided information about the workers at several points during discovery, and failed to do so. Defendant may not now rely on their affidavits.
B. Whether the Workers Are Employees
“Whether an employment relationship exists under a given set of circumstances is not fixed by labels that parties may attach to their relationship nor by common law categories nor by classifications under other statutes.” Solis v. Laurelbrook Sanitarium & Sch., Inc.,
Courts consider six factors in determining whether a worker is an employee or an independent contractor:
(1) the degree of permanency and duration of the relationship between the parties;
(2) the degree of skill required for rendering the services;
(3) the worker’s investment in equipment or materials required for the task;
*723 (4) the worker’s opportunity for profit or loss depending on his skill;
(5) the nature and degree of the alleged employer’s control over the worker’s performance; and
(6) the extent to which the services rendered are an integral part of the alleged employer’s business.
See Donovan v. Brandel,
Courts in this circuit have addressed the employment status of migrant workers, including pickle harvesters, on several occasions. In Brandel, the district court, after trial, found that the migrant workers who worked for the defendant during the pickle harvest were independent contractors rather than employees. See Brandel,
With this background in mind, the Court will address each of the factors used to determine employment status.
1. Permanency and duration of the relationship
Courts have reached differing conclusions in addressing this factor in the context of seasonal workers. In Brandel, the court found that the harvesters had only a temporary relationship with the defendant. Brandel,
In Cavazos, however, the court reached a different conclusion. Cavazos,
This case appears to fall somewhere between the cases cited. Defendant testified that most workers simply showed at up his farm looking for work. The harvest lasted
Under the circumstances, the Court finds that this factor does not weigh heavily in favor of either party.
2. Degree of skill
“The Brandel court stands alone in finding the skill required for pickle harvesting to weigh in favor of finding an independent contractor relationship.” Elizondo,
In this case, the record demonstrates that pickle harvesting did not require special skills. Although Defendant asserts that workers were responsible for caring for and training the plants, this is belied by the record. The contract specified that the workers were required “to be watchful of the crops daily needs and communicate those needs” to Defendant. (Dkt. # 17, Ex. L.) However, once workers notified Defendant of their concerns, Defendant was responsible for checking the vines. There is nothing to indicate that the workers cared for the plants or did anything more than report problems to Defendant. Thus, the circumstances in this care are unlike those in Brandel, where workers were in charge of managing the fields day-to-day.
Furthermore, Defendant admitted that he could train a worker to pick pickles in an hour. (Def.’s Dep. at 148-49.) Although Defendant clarified that it would take more time to become efficient at pickle harvesting (id.), that fact does not indicate that it required a high degree of skill.
In this case, the record demonstrates that pickle harvesting did not require a high degree of skill. This factor therefore weighs in favor of a finding that the workers were employees.
3. Worker’s investment
The record is clear that Defendant’s investment dwarfed that of the workers. The workers were not required to provide any of their own equipment, although many supplied their own dishwashing gloves, and some brought their own wheelbarrows. In contrast, Defendant supplied hoes, collection boxes, and the forklifts used to lift the boxes.
Defendant admits that the workers’ capital investment in gloves and wheelbarrows was minimal, but argues that the Court should consider the “personal capital” invested by the workers, who had to leave home, travel long distances, and be away from their families. Even if the Court were inclined to consider those circumstances, however, there is nothing in the record supporting an expenditure of “personal capital.” Accordingly, this factor weighs in favor of the workers being considered employees.
4. Opportunity for profit or loss
Defendant agrees that the workers had no risk of loss from the “aspect of capital inputs,” but argues that the Court should take into account the investment of time and travel. Defendant fails to point to any case law supporting this approach, and the Court found none. Furthermore, Defendant has not pointed to any evidence in the record demonstrating the extent of such an investment. Like other courts that have addressed this issue, the Court finds that “there is little, if any, evidence in the record to support the finding that these workers are actually exposed to any risk of loss.” Brandel,
In Brandel, the court found that the harvesters had an opportunity for profit because their earnings would increase if they successfully managed the fields. Id. In this case, however, the workers did not manage the fields, and thus did not have this opportunity. Rather, the circumstances of this case are more in line with those in which courts have found that there was no opportunity for profit. See Lauritzen,
5.Defendant’s control
In Brandel, the court found that the evidence established that the harvesters had entered into a sharecropping arrangement whereby the farm owner relinquished control to the harvesters. Brandel,
In contrast, other courts have found that the farm owner — rather than the harvesters — retained control. In Cavazos, the court found it relevant that the defendant made row assignments to the harvesters, retained the power to fire workers, spent time in the fields during the harvest, and monitored the health of the vines and the need for irrigation. Cavazos,
Again, this case falls somewhere between Brandel and those cases that reached the opposite conclusion. Defendant testified that he did not assign rows to workers, did not dictate their work hours, and did not retain the power to fire them. However, the workers did not negotiate with Defendant for particular parcels of land, nor did they negotiate with him regarding the timing of the harvest. Defendant spent significant time in the fields each day, and while he may not have closely monitored the workers’ progress, he did observe whether they were falling behind. Finally, Defendant was responsible for the health of the vines, and determined the need for irrigation and insecticide. Although there are some similarities with Brandel, the facts of this case diverge in important ways. Accordingly, this factor weighs in favor of a finding that the workers were employees.
6. Services as an integral part of Defendant’s business
In 2011, Defendant derived 84 percent of his income from pickle farming. Defendant could not reasonably dispute that the workers’ services during the cucumber harvest were an integral part of his business, nor does he make such an attempt. Rather, he argues that the decision in Brandel requires the Court, in analyzing this factor, to determine whether the workers were economically dependent upon him. Defendant misinterprets the language in Brandel, however. The Bran-del court determined that the harvesters’ services were integral, but that this factor was not determinative. Brandel,
While recognizing that this “is only one factor in determining the question of employment status,” id., the Court finds that this factor supports finding an employment relationship exists.
7. Economic Reality
The six factors discussed are intended to get at the “central issue” of whether the workers were economically dependent upon Defendant. See Brandel,
Plaintiff has not moved for summary judgment on his claim that Defendant paid the workers less than the minimum wage, and the Court expresses no opinion on that issue.
C. Defendant’s Record Keeping
The FLSA requires Defendant to keep records documenting the hours that each employee works daily and weekly. 29 U.S.C. § 211(c); 29 C.F.R. § 516.2. Defendant admits that, during the 2011 harvest, he did not keep records of hours worked each work day. Rather, he asked “each worker on a weekly basis how many hours they had worked the previous week and calculated] the hourly earnings.” (Def.’s Br. in Supp. of Summ. J. at 6; see also Def.’s Dep. at 87.) Accordingly, the Court concludes that Defendant violated the record keeping provisions of the FLSA.
Plaintiff requests an injunction requiring Defendant to comply with the FLSA’s record keeping requirements. See 29 U.S.C. § 217 (giving trial courts discretion to enjoin FLSA violations). The issuance of an injunction under the FLSA is within the reasonable discretion of the trial court. Martin v. Funtime,
During a previous investigation, a WHI instructed Defendant to keep accurate records and provided him with publications detailing how to do so. Nonetheless, Defendant has failed to comply with the requirements of the FLSA. In this case, the factors that weigh against granting an injunction are not present — Defendant has not made a dependable effort to comply, nor has he made efforts to prevent recurrence. Defendant has not even indicated that he will attempt to comply with the FLSA going forward, let alone promised to do so. Moreover, Defendant has previously violated the FLSA, and did not respond to the government’s efforts to remedy this violation without legal action. Accordingly, the Court finds that an injunction is warranted.
MSPA Claims
A. Housing at the Green Camp
Section 203(a) of the MSPA requires “each person who owns or controls a facility or real property which is used as housing for migrant agricultural workers” to ensure that the facility complies with applicable health and safety standards. 29 U.S.C. § 1823(a). A person controls a facility if the person “is in charge of or has the power or authority to oversee, manage, superintend or administer the housing facility or real property either personally or
The MSPA is a remedial statute, “enacted in response to the exploitive practices that historically plagued the migrant agricultural labor market.” Becerra Hernandez v. Flor, No. Civ. 01-183 (PSM/LE),
In this case, the DOL found nine separate housing violations at the Green Camp. Defendant does not dispute the violations, but argues that he is not liable under the MSPA because he did not own or control the property. Defendant asserts that he never went to the property in 2011, and that his only connections with the property were that some of his workers stayed there and that he authorized Baccaria, his employee, to get the property ready for the workers to arrive and make repairs.
The applicable regulations state that an individual is deemed to have control over the property if he has authority to “oversee, manage, superintend, or administer” the facility through an authorized agent. 29 C.F.R. § 500.130. In this case, Baccaria had the authority to prepare the property for the workers and to make repairs once the workers arrived. Because he performed those activities within the scope of his employment with Defendant, the activities are attributable to Defendant. See Castillo,
B. DOL’s Investigation
The Secretary may “investigate, and in connection therewith, enter and inspect such places ..., question such persons and gather such information to determine compliance” with the MSPA. 29 U.S.C. 1862(a). An individual may not “unlawfully resist, oppose, impede, intimidate, or interfere with any official of the [DOL] assigned to perform an investigation” without violating the MSPA. 29 U.S.C. 1862(c).
Plaintiff argues that Defendant attempted to interfere with the DOL’s investigation by stalking the WHIs in his truck, having Baccaria stalk the WHIs in the forklift, and videotaping the interviews. Plaintiff points to a district court case noting that “videotaping and the presence of supervisors during interviews would unreasonably interfere with the Secretary’s ability to interview migrant workers.” See Perez v. Blue Mountain Farms,
Defendant argues that he did not attempt to record or listen to the interviews, but only to photograph them. Defendant further asserts that the DOL cannot argue that it was attempting to maintain confidentiality because it conducted the interviews in plain sight. Finally, Defendant argues that the Court should consider the “threat” that WHI Enrico made in 2010.
Defendant’s arguments are unavailing. He has admitted that he approached the WHIs in the field for the purpose of getting them to leave his property. Although Defendant claims he never tried to listen to the interviews, he parked in such close proximity that he would inevitably hear what was being said. Although the WHIs conducted the interviews in “plain sight,” the record indicates they intended that the interviews remain confidential. No matter where the WHIs conducted the interviews, Defendant knew that his workers were the subject of the interviews. Thus, it was the content of the interviews — and not the subjects — that the WHIs intended to keep confidential. Finally, the “threat” made by WHI Enrico indicates only that the DOL had concerns that Defendant was not complying with the law, and thus it is no surprise that the DOL decided to investigate.
In the end, Defendant attained his goal — the WHIs concluded that they could not successfully complete the interviews and they cut their investigation short. Under the circumstances, the Court finds that Defendant interfered with the DOL’s investigation.
C. Injunctive Relief
The MSPA authorizes the Secretary to petition for injunctive relief if he determines that the MSPA has been violated. See 29 U.S.C. § 1852(a). Plaintiff requests an injunction prohibiting Defendant from violating the MSPA’s requirement for housing and from interfering with the DOL’s future investigations. A court considers four factors in determining whether to issue an injunction: (1) the plaintiffs success on the merits; (2) whether the plaintiff may suffer irreparable harm absent an injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of an injunction on the public interest. See Jolivette v. Husted,
As discussed, Plaintiff has succeeded on the merits of the MSPA housing claim. Congress has tasked Plaintiff with protecting the rights of migrant workers and ensuring that they are not subject to unhealthy housing conditions. Plaintiff, and the workers he must protect, will suffer irreparable injury if Defendant does not comply with the law. Defendant will not suffer any harm from an injunction, since it merely requires Defendant to do what is already required of him. Finally, as Congress has already determined, requiring those that own or control housing to satisfy health and safety standards will serve the public interest. Granting an injunction will further serve this interest by ensuring that Defendant satisfies his obligations under the MSPA.
The analysis for the MSPA interference claim is similar. Plaintiff has demonstrated success on the merits. Plaintiff will suffer irreparable harm if not permitted to conduct a thorough investigation, because the DOL cannot fulfill its statutorily-mandated duty to investigate potential viola
Accordingly, the Court concludes that the Secretary is entitled to an injunction on its MSPA claims.
IV. Conclusion
The Court finds that the workers who harvested Defendant’s 2011 cucumber crop were employees under the FLSA, and thus entitled to the protections of that statute. Defendant did not comply with the FLSA’s record keeping requirements, specifically the requirement that Defendant keep track of the daily hours worked by each employee. The Court further concludes that Defendant did control the “Green Camp” housing where many of his workers lived during the 2011 harvest, and thus is liable for the MSPA violations that occurred there. Finally, the Court concludes that Defendant interfered with the DOL’s investigation in August 2011, in violation of the MSPA.
Accordingly, the Court will grant the Secretary’s motion for summary judgment, and deny Defendant’s motion. Defendant shall keep records that comply with the FLSA’s record keeping requirements. Specifically, Defendant shall keep accurate records of the hours that each of his employees works daily and weekly. To the extent that Defendant owns or controls any housing provided to migrant workers, he shall ensure that such housing complies with the MSPA. Finally, Defendant shall allow the DOL to conduct investigations without interference. Specifically, Defendant shall not record any interviews, or instruct others to record such interviews. Defendant shall further ensure that investigators are provided sufficient space to privately interview any migrant worker or other employee.
A separate order will issue.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS MOTION FOR SUMMARY JUDGMENT
In accordance with the Opinion filed this date,
IT IS HEREBY ORDERED that Plaintiffs Motion for Partial Summary Judgment (dkt. # 14) is GRANTED. Hereinafter, Defendant shall comply with the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 U.S.C. § 1801 et seq., as described in the accompanying opinion. Specifically:
(1) Defendant shall keep accurate daily and weekly time records for his employees in accordance with the FLSA’s requirements. See 29 U.S.C. § 211(c).
(2) To the extent that Defendant owns or controls any housing provided to migrant workers, he shall ensure that such housing complies with the MSPA. See 29 U.S.C. § 1823(a).
(3) Defendant shall allow the Department of Labor to conduct investigations without interference. See 29 U.S.C. § 1862(c). Defendant shall not record any interviews, or instruct others to record such interviews. Defendant shall further ensure that investigators are provided*731 sufficient space to privately interview any migrant workers or other employees.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (dkt. # 19) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs Motion to Strike Defendant’s Affidavits (dkt. # 36) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Motion to Strike as Untimely Defendant’s Response to Secretary of Labor’s Motion to Strike Affidavits (dkt. # 42) is GRANTED.
Notes
. Plaintiff originally sued Ron Howes as well, but Plaintiff and Ron Howes entered into a consent judgment. (Dkt. # 27.)
. The FLSA defines an “employee” as "any individual employed by the employer.” 29 U.S.C. § 206(e)(1). It further defines employ as "to suffer or permit work.” 29 U.S.C. § 206(e)(g). However, the Sixth Circuit has noted that those definitions are "exceedingly broad and generally unhelpful.” Laurelbrook,
. Defendant issued a paycheck to 32 workers for the first week of the harvest, and 30 workers for the final week of the harvest. (Dkt. # 30, Ex. B, C, E.) Although Defendant claims that 29 workers worked during the first week of the harvest and only 13 worked during the last week, the check stubs that Defendant cited in support of this proposition (dkt. # 20, Ex. N) are incomplete. (See Dkt. # 30, Ex. B.)
. Defendant argues that it is relevant that nearly all of the workers also worked in a cherry plant for four weeks during the 2013 harvest. He acknowledges, however that this was an aberration from the normal course because the cherry harvest was late in 2013. (Def.’s Dep. at 154.)
. Defendant also made significant investments before the harvest began. However, the Brandel court considered only the investment made during the harvest. Brandel,