Secretary of Labor, United States Department of Labor v. Michael Lauritzen and Marilyn Lauritzen, Individually and Doing Business as Lauritzen Farms

against any promises threats nor offered sey right had a to be taken a before federal jury’s him. The decision solely turned on magistrate unnecessary without delay on evaluation credibility of the relative immediately December 23 after he was in- government’s Causey. and witnesses Af- by agent. terviewed the FBI Despite the hearing testimony trial, ter jury intervention of the holiday, Christmas government’s chose to credit the witnesses. government does not contend that the four- surely We exceed authority would both our day delay necessary. was good judgment by the bounds of sub- assert, however, It does Causey has stituting our Causey’s determination that not demonstrated that his defense was other, account is correct and the directly any way prejudiced by four-day delay. contrary, testimony is false.4 already signed He had a confession and Causey also contends that he asked for nothing happened in the damage interval to request counsel his ignored. was Two him or to affect his adversely. defense city police agent officers and the federal There indeed allegation was neither of nor separate testified that on Causey occasions proof of prejudice. right counsel, was advised of his by first Accordingly, judgment of conviction city police, agent, then the FBI is AFFIRMED. The panel, members of the that he never asked for jury, counsel. The however, continue to adhere to their dis- having witnesses, seen and heard the did sent opinion. from the en banc Causey’s not believe account. There the fact-finding rests.

Finally, Causey contends his

confession was obtained in violation

Rule 5 of the Federal Rules of Criminal Supreme

Procedure and the Court decision in Mallory v. United States5 because he LABOR, OF UNITED SECRETARY was not taken a federal magistrate before STATES DEPARTMENT OF unnecessary delay. without After a de LABOR, Plaintiff-Appellee, convicted, fendant has been tried and how v. ever, delay bringing magis him before a trate reason set aside the convic Marilyn Lau Michael LAURITZEN and tion unless the defendant can show that he ritzen, individually doing business prejudiced was delay.6 Causey was Farms, Defendants-Appel as Lauritzen arrested at 23, 10:30 a.m. on December lants. 1985, gave his confession to the FBI No. 86-2770. agent p.m. at 2:00 day. the same A federal Appeals, States Court of warrant for his United arrest was issued on De 24, Circuit. cember Seventh but he was not taken before magistrate federal p.m. until 3:20 on De 27, Argued May 1987. cember 27. 15, Decided Dec. requirement 5(a) begins of Rule Rehearing En Banc Rehearing and when is taken accused into cust federal 8,1988. Denied Feb. ody,7 unless the federal and state officials previously concert, working in been present. Thus, circumstance not here Cau- States, 80,

4. Glosser v. 60, 1532, United (1978); 315 U.S. 98 S.Ct. see also 55 L.Ed.2d 545 457, 469, (1942). S.Ct. Greer, 86 L.Ed. 680 472, United States denied, Cir.), 1009, 1881, cert. 435 U.S. 98 S.Ct. 449, 1356, 5. 354 U.S. 77 S.Ct. 1 L.Ed.2d 1479 (1978). 56 L.Ed.2d 391 (1957). Montes-Zarate, Rollerson, 1330, 6. United States v. 7.United States v. F.2d denied, (9th Cir.1977), (5th Cir.1974). cert. 435 U.S. Orden,

Richard M. Van Rapids, Grand Mich., for defendants-appellants. Wright Coleman, Paula Office of the So- licitor, Dept, Labor, U.S. Washington, D.C., for plaintiff-appellee. WOOD, FLAUM,

Before EASTERBROOK, Judges. Circuit WOOD, Jr., HARLINGTON Circuit Judge.

This, unlikely seem, itas at first pickle a federal case. The issue is migrant whether the workers who harvest crop of defendant Lauritzen Farms, in effect defendant Michael Laurit- zen, are purposes of the Fair Labor (“FLSA”),1 Standards ofAct independent instead contractors subject requirements to the Act.2 The Secretary, alleging migrant employees, harvesters are contractors, brought seeking this action enjoin the violating defendants from wage requirements minimum en- and to seq. 1. 29 § U.S.C. 201 et "pickle” new pick- seed. grow whether But only potential pickles les or in the form of parties crop All the refer to the to be harvested cucumbers, the law the same. "pickle crop,” as the Perhaps so shall we. developed defendants have a remarkable employment status of the record-keeping and child labor force workers could be concluded as a matter of provisions of the Act. law. principal discovery, entailed After work collecting depositions

ly yearly plant basis the defendants On defendants, the for the ers who had worked pickles to 330 acres of on land between 100 summary judg partial Secretary moved or lease. The they either own harvested countered with affi ment. The defendants processors in crop is sold to various previously deposed of the davits of some pickles handpicked, usually area. contradicted their migrant workers which July through September, by migrant contradictions depositions. The earlier from out of state. families Sometimes language interpretation charged to children, age, were years some under twelve to the absence of defend difficulties and capacity along- work in some the fields depositions when the were ants’ counsel parents. Many side their granted court The district the Sec taken.3 harvest season ar- families return each partial summary judgment, deter retary defendants, but, rangement with the each migrants employees, mining the to be year, migrant families often come other for independent contractors. Brock v. Laurit Florida, the first time from Texas and else- (E.D.Wis.1985) zen, F.Supp. looking where for work. The defendants I). (Lauritzen set to Trial was then deter families, orally inform either would the remaining possible issues of mini mine the writing, sometimes in of the amount of violations, violations, wage mum child labor compensation they receive. were to Com- sufficiency of the defendants’ stat and the pensation is set the defendants at one- required keeping. By utorily record proceeds half of the the defendants realize however, complaint, the minimum amended migrants pickles on the sale of the that the wage allegations violation were eliminated. family on a Toward the end harvest basis. sought Secretary summary judg The then season, crop less of the harvest when is ment on the remainder of the case. Some and, therefore, profitable, less abundant migrant sought unsuccessfully to workers migrants offer the a bonus the defendants protect to their claimed contrac intervene encourage complete stay to them to to protested tual status. The defendants harvest, anyway. but some leave issues, they had raised material but factual “Migrant requires law a form Wisconsin disagreed. court the district The district signed, Agreement” to and it was Work controlling court found that the material provides same used in this case. It for the largely undisputed facts were and entered paid by is the defendants pay scale as final on the judgment issues of record- guaranteed. wage minimum except the violations, keeping enjoin and child labor Migrant The Wisconsin Law invalidates ing the defendants from further violations to convert mi- agreements that endeavor Act, dismissing and the action. indepen- grant from to workers Lauritzen, Brock v. F.Supp. 18-19 Wis.Stat.Ann. dent contractors. (E.D.Wis.1986) (Lauritzen II). Both sum (West 1987); Op. Att’y 103.90-.97 § mary judgment appealed orders are as well (1982). Accompanying Gen. Wis. as the district court’s denial of the defend pickle price pur- is a list agreement work ants’ motion under Rule of Federal Civil processors porting set forth what the 60(b)(6),seeking Procedure relief pickles of vari- pay will the defendants entry partial summary judgment. first is the grades. price This list basis ous migrant compensation. The workers’ (I. FACTUAL BACKGROUND parties are not to the determina- workers prices agreed upon between the tion of We must examine the factual back- processors. ground and the of the case to determine whether defendants however, gave government, dep- the usual notice 3. The absence of defendants' at the counsel migrant depositions in Texas where the ositions was the fault of or of take the the defendants counsel, replaced. then located. their who was workers were later relating All matters planting, extent, fertiliz- some ability migrant ing, spraying, irrigation insecticide and family judge pickles’ size, color, and crop are within di- the defendants’ freshness so as to pickles achieve of better rection, performed by workers other grade higher value. than workers here involved. The workers their general- describe work Occasionally migrant who has worked for ly just “pulling pickles off.” It is previously defendant and knows the always physically easy, however, be- harvesting suggest will irriga- the need for cause the work stooping involves tion. In order to pickle-rais- their conduct kneeling and constant hands, use of the ing business, the defendants have made a often under a hot Picking pickles sun. land, buildings, considerable investment requires prior little or no training experi- equipment, supplies. The defendants ence; a short demonstration will suffice. provide migrants housing free One worker recalled that when he assign, regard the defendants was years ten old it had taken him about any preference the migrant families five minutes to picking. learn Pick- supply have. defendants also mi- les grow continue to and develop until grants equipment with the they need for picked, uniformly, but not harvesting so migrants their work. The supply only need continuing process. work- gloves work for themselves. depends ers’ income on the results of the The harvest area is subdivided into mi- particular family’s efforts. The defend- grant plots. family The defendants make ants explain exercise the allocation after the families care plants for both pickles, the and the acreage inform them how much family the which yields, results in maximum a benefit harvest. depends can Much on which areas to family the as well as to the defendants. harvest, ready are to particular and when a Machine harvesting, although advanta- migrant family may ready arrive to work. geous for crops, other is not suitable for defendants, family, The not the determines pickle harvesting. The defendants leave family pick pickles. members the will the pick when and how to the to families family If a arrives before the harvest be- under arrangement. this incentive The de- gins, the may, nevertheless, defendants fendants occasionally visit the fields to provide housing. them with A few be families, check on the crop, the and to given some permitted interim duties supervise irrigation. defendant, The Mi- to work temporarily for other farmers. Lauritzen, chael actually operates who the pickles the ready When pick, are how- business, is sometimes referred to as the ever, the family’s attention must expressed “boss.” Some workers the be- devoted only particular to their pickle right lief that he had the to fire them. plot. The district court considered the factual pickles that ready to harvest are background generally set forth above to be picked must be regularly completely I, largely undisputed. Lauritzen 624 they grow large before too and lose value F.Supp. at deny defendants that give when classified. The the defendants some of undisputed the facts are because pails workers put picked in which to some of pickles. migrants subsequently pails When filled are changed testimony. their pickers pails They argue dumped are that into the de- migrants language some problems fendants’ had sacks. At end of the harvest day which caused family respond them to incorrectly member use one of de- will during depositions. their support fendants’ trucks to To day’s pick this haul argument, grading presented one defendants’ stations or sort- defendants coun- ing sheds. After teraffidavits pickles graded migrants from four which al- give lege migrant family defendants in conclusory language that their rela- receipt showing member a pickle grade tionship with the had defendants been at all weight. The income of the individual fami- times “that of businessman always due, is not equal. lies That is employee.” contractor and not one of an “contracted,” fact, they say, ignore genuine with the de- They issues of material respects In other these later fendants. nor “strain to find” material fact issues dispute counteraffidavits did basic none, where there are and we shall not. background factual that we have recount- Co., Tillett v. J.I. Case 756 F.2d 591 ed, migrants four except that these claimed Cir.1985); Fund, Inc., Mintz v. Mathers pickle-picking expertise required their 495, (7th Cir.1972). 463 F.2d develop. complete least a harvest recognized It is well that under the affidavit, set forth in the The conclusions statutory regarding FLSA the definitions language obviously lawyer, in the of a employment5 comprehensive are broad and themselves, migrants create no accomplish pur order to the remedial material factual issues. See, poses e.g., of the Act. United States of defendant Michael Lau- affidavits Rosenwasser, 360, 362-63, U.S. ritzen, part, for the most track the facts 295, 296, (1945); S.Ct. 89 L.Ed. 301 Real v. undisputed by judge, found to be trial Associates, Inc., Strawberry Driscoll adding only more detail. Lauritzen claims (9th Cir.1979). Courts, there pickle industry the Wisconsin as a fore, have not considered the common law relationship mi- whole considers the concepts “employee” “independent grant to be contractual. He ex- workers contractor” to define the limits of the Act’s hourly compensation plains that does not coverage. seeking, instead, We are to de revenues, pro- more maximize that the reality.” termine “economic Brock v. Mr. except ficient would not work Fireworks, Inc., 1042, 1043(5th 814 F.2d W through relationship. a contractual He de- Cir.1987); Strong Agen Karr v. Detective any compen- nies that the workers receive Inc., (7th Cir.1986). cy, pickle if sation there are no harvest sale purposes legislation, For of social welfare aspects proceeds. Other busi- “ FLSA, ‘employees such as the are those ness, out, points crop such as reality who as a matter of economic dusting, also are done Noth- contract. dependent upon the business to which ing in the Lauritzen affidavit differs in ” render service.’ Mednick v. Albert En way substantial from the trial court’s view Inc., 297, (5th 508 terprises, 299 Cir. facts, except placed that stress is on 1975)(quoting 332 Birmingham, Bartels v. in details an effort to make an certain 1547, 1549, 126, 130, U.S. 67 S.Ct. 91 L.Ed. employment arrangement appear (1947)). 1947 more than it is. seeking In to determine the econom II. STANDARDS OF REVIEW reality working ic of the nature of the generally again We need not review relationship, particu courts do not look to a requirements disposition by summa lar isolated factor but to all the circum ry judgment,4 except to note that a minor activity. stances of the work Rutherford preclude summary dispute factual does not McComb, 722, 730, Corp. Food v. 331 U.S. disputed The facts must be judgment. 1473, 1476, (1947). 67 91 L.Ed. 1772 S.Ct. govern “outcome determinative under the developed Certain criteria have been to as ing Spradlin, law.” Hossman v. 812 F.2d determining true nature of the sist 1019, (7th Cir.1987) curiam); (per 1020-21 itself, by or relationship, but no criterion is 292, Egger Phillips, v. 710 F.2d 296 absence, controlling. dispositive or its Cir.) (en banc), denied, 918, 464 cert. U.S. 284, (1983). Among the criteria courts have con- 104 S.Ct. 78 L.Ed.2d 262 way” following should neither “look the six: court other sidered are 56(c). employer of an in relation to an 4. Fed.R.Civ.P. in the interest 203(d). "[ejmploy employee." 29 U.S.C. To § employee simply "any 5. The Act defines an permit or to work." 29 U.S.C. includes to suffer employed by employer.” individual 29 U.S. 203(g). § 203(e)(1). "employer” C. An is defined to § “any person acting directly indirectly include or

1535 1)the degree nature and of the alleged The findings as to six factors them- employer’s control as to the manner selves constitute the second tier of findings which the work is to performed; under the Act. The Fifth explained Circuit 2) the alleged employee’s opportunity for findings these are “plainly simply profit or loss depending upon his based man- on inferences from facts and thus agerial skill; are questions of fact that we may set aside 3) only if alleged employee’s clearly erroneous.” investment in Id. The court equipment or went on materials required say task, his employment his of work- [t]wo caveats are necessary, however. ers; Although we only set aside factual 4) whether the findings service requires rendered the district court if we have a special skill; firm and definite conviction that a mis- 5) take made, has been degree of permanency this must not dura- servé as an excuse tion of the working avoid relationship; comprehensively canvasing the record with 6) great care. extent to which the service ren- For us to otherwise, do abrogate would dered is an integral part of alleged our role duty as a reviewing employer’s court. business. Congress surely did not intend 52(a) Rule See Bartels Birmingham, v. 126, 332 U.S. to constrict as a corset, Victorian binding 130, 1547, 1549, S.Ct. 91 L.Ed. 1947 the courts appeals to the findings of (1947); Food Corp., 331 U.S. Rutherford the district' court absent a careful and 730, 1476; 67 S.Ct. at United States v. fitting Second, examination. we must Silk, 704, 716, 331 U.S. 1463, 1469, S.Ct. ensure that the factfinding of the district (1947); L.Ed. 1757 see also Donovan v. performed court is with the proper legal Dial-America Inc., Marketing, 757 F.2d standards Only mind. then can the 1376, (3d Cir.), denied, cert. 474 U.S. inferences that reasonably logically 919, 106 S.Ct. (1985); L.Ed.2d 255 flow from the historical represent facts Brandel, Donovan 1119- application correct of law to fact. The (6th Cir.1984). This court previously district court’s analysis, course, is sub- has held that the determination of workers’ ject to plenary review court, this status is a than one, rather a factual ensure the district court’s under- and therefore subject to the clearly standing of the law proper. erroneous standard of Karr, review. (citations Id. at 1044-45 omitted). F.2d at 1206. underlying facts, how- ever, are necessarily subject third level findings to that stan- is the district dard. Id. court’s ultimate conclusion as to whether the workers are employees

The Fifth Circuit recently discussed the contractors. The found, Fifth Circuit types as of findings involved determining have, we that the effect of the fact whether workers are employees within the findings question is a 1045; of law. at Id. meaning of the Fireworks, FLSA. Mr. W Karr, 787 at 1206. 814 F.2d at According 1044-45. to the Circuit, Fifth a district court makes three III. ANALYSIS kinds of findings under the Act. The first are the historical findings of fact that un- In a agricultural number of cases, albeit derlie the findings regarding the six nonpickle cases, courts applied the six factors mentioned above. example An criteria to employment, find an rather than such a finding in this case is the contractual, court’s a See, relationship. e.g., Beliz finding that the workers supplied v. W.H. McLeod & Co., Sons Packing 765 their gloves. own As the Fifth (5th Circuit F.2d Cir.1985); 1317 Driscoll Straw- found, beyond cavil “[i]t ... that these berry Associates, 748; 603 F.2d Hodgson findings of historical fact subject are to the Okada, v. 472 (10th Cir.1973). F.2d 965 In clearly erroneous rule of Federal Rule of some other involving migrant cases work- 52(a).” Civil Procedure Id. at 1044. ers circumstances, similar employ- an

1536 Circuit, Brandel, according to the Sixth either relationship admitted was ment the right to dictate not retain “the issue. did assumed, therefore not was Miller, the the harvest- 721 F.2d in which details manner Washington v. See, e.g., Brandel, Mattner, 633 executed.” 736 Cir.1983); ing v. function (11th Bueno 797 example, v. he did not Alzalde For (W.D.Mich.1986); F.2d at 1119. 1446 F.Supp. (D.Colo.1984). supervise work- Ocanas, F.Supp. 1394 fields the appear in the to 580 In this ers, for them to work. hours set however, Bran case, Donovan In one occasionally visit case, did the defendants district the affirmed del, Circuit the Sixth The workers in the fields. families the har migrant workers classifying court in as Michael referred to Lauritzen sometimes sim circumstances vesting pickles, under a “boss,” expressed some of them here, contrac independent ilar to those fire them. right that he had belief (6th employees. tors, not Circuit, Moreover, we be- unlike the Sixth circuit, how Cir.1984). its own Even in right control the defendants’ lieve that and dis ever, narrowed case has been that opera- pickle-farming the entire applies to v. Gill Although Donovan tinguished. harvesting. tion, details of just (N.D.Ohio), appeal F.Supp. mor, pervasive control Cir.1982), exercise was The defendants dismissed, F.2d 723 there- a whole. Brandel, operation as We pre-Brandel over the decided before that the reexam- agree with the district court was thereafter fore holding in Gillmor effectively relinquish in 1986. court same district did by the defendants ined migrants. announced harvesting was to the the Brandel decision control of After reaffirmed circuit, court I, F.Supp. district 968. in that inconsistent, holding in an un- original, its note itself took Brandel order. published and Loss B. Profit holding in Gillmor contrary prior the mi found Sixth that Circuit factual ba- on a distinguished Gillmor in opportunity had the grant workers distinc- revealing which factual sis without manage through the profits their crease to be critical. court considered tions the Although Id. of their fields. ment Although some n. F.2d at in the no evidence found little or the court between are evident factual differences finding that work a supporting record Gillmor, the situations this case loss, it risk exposed ers were similar also similar.6 Brandel basically their remuneration fact sim- found the case, view factual but we to this management their through increase did Brandel would differently than ilarities profit and dispositive to be efforts court. Although agree. We do not analysis. loss part depend A. opportunity may Control profit is, is no picker there good pickle a on how court found Brandel migrant work possibility for corresponding arrange landowner, sharecropping under held, re court the Gillmor er loss. As control ment, relinquished effectively had migrants is money duction in earned The court migrants. harvesting to the criteria satisfy the sufficient not a loss finding its a factor in this to be considered independent status. contractor migrant workers were invest migrants F.Supp. 162. The have at pervasive over of the In view contractors. work except for cost of their the nothing ed here, by retained the defendants all control have no investment therefore gloves, and finding. We same not reach the dowe earnings a in due to Any reduction to lose. more no wage arrangement as view the wages, of and not crop is a poor pickle loss employ effectively motivate way a to than I, 624 Lauritzen determining of investment. of ees, provide means to a F.Supp. 969. at wages. their exclusively They always worked crops tional sums. oth- migrants did harvest In the Gillmor employer. for the paid addi- one pickles, for which were er than Capital C. tionship. Investment The Sixth Circuit in Brandel found that the vast majority of harvesters capital investment factor is only a temporary relationship with the profit interrelated to the and loss consider employee suggested which to the court an ation. The court characterized Gillmor independent contractual arrangement. Id. the in “large investment this context to be Many seasonal businesses necessarily hire expenditures, capital, capital such as risk only seasonal employees, but that fact investments, negligible not items or alone does not convert seasonal F.Supp. labor itself.” 535 at 161. The into independent seasonal contractors. workers here responsible only pro for Many migrant families year return after viding gloves. their own Gloves do not year. In Brandel the returning migrant capital constitute a As in investment. Gill comprised families high as proportion as mor, else, “[everything equip from farm forty percent fifty percent to of the work ment, land, seed, fertilizer, insecticide [and] force. Id. at 1117. In this case the district living quarters the the court found migrant the workers did supplied by the defendants.” Id. at 162. not permanent have the sort of relationship I, F.Supp. See at Lauritzen 969. Al associated employment. I, Lauritzen though in Brandel furnished F.Supp. at 969. Nevertheless, when pails, the Brandel court minimized this the district court considered finding its in by saying factor pickle that in harvesting light of the reality economic parties’ by hand there is no need for heavy capital entire work relationship, the court did not worker, by investment and the overall consider this one criterion to dispositive. size of the investment employer Although we have serious doubts about relative to that the worker is irrelevant. this particular district court determination 736 F.2d at 1118-19. To the contrary, we in view of cases such as Beliz v. W.H. believe that the dispro workers’ McLeod Co., & Sons Packing portionately small stake in pickle-farm (5th Cir.1985), we need not dis- ing operation is an indication that their finding turb that for purposes of this work independent is not of the defendants. agree case. We with the Gillmor court temporary however the relationship Degree D. Required Skill permanent be it is and exclusive for Although worker develop must the duration of that harvest season. 535 specialized some skill in order recognize F.Supp. at 162-63. One per- indication of pickles which pick when, this develop manency in case is the this fact that it is occupational ment of skills is no different not uncommon families to good what employee in any line year return year. after of work must do. Skills are monop not the oly contractors. See Lau F. Harvesting Integral anas Part De- I, F.Supp. ritzen at 969. The Brandel Business fendants’ court high found that a degree of skill is Another factor we briefly consider caring involved in pickle plants is the extent mi service of picking pickles. at 1117-18. grants may integral be considered an part agree We some skill is required, but of the pickle-picking business. The district we do not that this find level of skill sets migrants’ court held that the work was an apart harvester from the har integral part business, even vester of crops. other The migrants’ talent court I, conceded. Brandel physical their endurance hot sun 969; F.Supp. Brandel, 736 F.2d at do change the nature of employ their 1120. The defendant here a contrary takes ment relationship with the defendants. appeal claiming view on that the record is insufficient to sustain the district court E. Permanency finding. It does take much of a record Another factor the employment analy- picking pickles demonstrate that is a sis is permanency and of necessary duration the rela- integral part and pickle of investment, employer’s that workers are unable to find work with unless

business cultivating only any employer activities are planting, and other to find that the work- purpose raising of ornamental serve the ers are rather than contractors. t.o pickle vines. That result likely would disap- say migrants cannot that the We point good pickle all lovers. but, instead, employees, not are in busi are sufficiently and inde ness themselves Migrant Dependence G. Workers pendent beyond lie the broad reach of final is to consider the Our task They depend on the the FLSA. defend migrant families de degree to which land, agricultural expertise, crops, ants’ depend Economic pend on the defendants. equipment, marketing They skills. It just another factor. more than ence is employees. defendants’ of all the focus other considera instead the tions. aids—tools to be IV. CONCLUSION tests are

The [other] degree dependence gauge the used to No trial is needed to sort out employees on the alleged business material in these in facts circumstances they are connected. It is with which to the conclusion of law that order to come employee that indicates sta- dependence employees, these workers are enti applied that test must be with tus. Each protection tled to the of the FLSA. The impor- in mind. More ultimate notion purpose protect employees Act is to of the ques- tantly, the final and determinative hours, wages long from low and “to the total of the must whether tion be free commerce from the interferences aris personnel so testing establishes ing production goods under from the upon the business with which dependent that were detrimental to the conditions they come within they are connected well-being health and of workers.” Ruth the FLSA or are suffi- protection of McComb, Corp. Food v. 331 U.S. to lie outside its am- ciently independent erford 722, 727, 1473, 1475, 67 S.Ct. 91 L.Ed. 1772 bit. case, (1971). example, In this some Co., Equipment Usery Pilgrim age years under twelve are in children (5th Cir.) 1308, (emphasis original), in 1311-12 Although sugges fields. there is no 826, 82, denied, 429 U.S. 97 S.Ct. rt. ce tion in the record that the defendants are (1976). The district court 50 L.Ed.2d 89 abusing any way, the children the child economically were held that the provisions of the Act are intended for labor during the dependent on the defendants that the defend their benefit. It I, F.Supp. season. Lauritzen harvest operation exemplary pickle and con ants’ pickle If the families are at 969. pursuant higher to standards even ducted pickles pick in pickers, they need then FLSA, does than those of the but that mi economically. The order to survive the defendants to circumvent the Act. allow dependent grants clearly are on the pre gloomy does the defendants’ Neither defendants, business, for their con application diction that of the Act will have livelihood. employment and Dono tinued devastating impact pick economic on the Inc., 757 Marketing, van v. DialAmerica complying le business relieve them Cir.), denied, 1376, (3d cert. event, provisions. the Act’s In 88 L.Ed.2d 255 106 S.Ct. U.S. Congress, argument is one for the (1985). why many of them return That is arrangement the courts. basic be The defendants contend year year. after pickle pick defendants and the tween the migrant families are demand that skilled defendants, which, according pro to the ers the defendants. not need the area do highest duces the economicreturn for both defendants the Were it not for the picker, need not altered. grower and find some other families would have to change All need is the label which the pickle grower hire them. Until who would arrangement. apply to the defendants grower, they found would be another only proceeds defendants need think unemployed. necessary is not to show It (7th paid pickle pickers wages, keep Cir.1985). as Why keep cucumber farm- records, necessary they and make sure ers in the dark legal about conse- protections by abide that the Act ac- quences of their deeds? working cords to children.7 People are entitled to legal know the Affirmed. act, rules before only the most compelling reason should lead a court to EASTERBROOK, Judge, Circuit approach announce an under which no one concurring. can know where he litigation stands until completed. has been Litigation costly pickers “employees” Are cucumber and introduces any endeavor; risk into purposes of the Fair Labor Act? we Standards struggle should Brandel, eliminate the Donovan v. 736 F.2d risk and help people Cir.1984), save the says costs. “no” as a matter of law. Unless some obstacle such My inexperience as colleagues say “yes” as a matter of with the sub- ject, facts, a dearth of opinions through law. Both march or a seven vacuum in the intervenes, statute books important, disposi- “factors” —each none we should be able legal tive. to attach majority puts consequences As the it: “Certain to recurrent patterns. criteria factual developed have been to assist in Courts have plenty had determining experience the true nature of the relation- with the application of the ship, itself, but no criterion is its FLSA to farm Fifty workers. absence, dispositive controlling.” years At passage after the Act’s is too late to 1534. Courts say must examine “all the cir- that we still do not legal have a rule to cumstances” search of govern “economic reali- My these cases. colleagues’ bal- ty.” Ibid. ancing approach prevailing method, is the they apply carefully. But it is unsat- comforting It is to know that “economic isfactory both guid- because it offers little reality” cringes is the touchstone. One ance for future cases and because bal- might think that courts decide these cases ancing begs questions test about which as- on the basis of economic fantasy. But pects matter, reality” of “economic “reality” encompasses facts, millions of why. legal and unless we have a rule with which immaterial, to sift the material from the we might as well examine the through facts I kaleidoscope. matter, Which facts problems balancing Consider the with the

why? A approach calling judges on test. These are not the factors the Re- facts, to examine all of the and balance (Second) 2(3)(1958) statement Agency them, § formulating avoids a rule of decision. suggests identifying “independent con- price of avoidance should be commit- tractors.” The takes Restatement ting fact, the decisions to the finders right physical view that the to control the inability our to fulfill Justice Holmes’s be- performance job is the central ele- lief that all tort law could be reduced to independent ment of status as an contrac- formulas after years experience1 some My colleagues, joining tor. many other has juries today meant that decide the most courts, say approach inapplica- that this complex products liability cases without “accomplish ble because we should the re- guidance substantial from legal principles. (at 1534): purposes medial of the Act” Surely right Holmes was in believing that legal propositions ought Courts, therefore, to be in the form have not considered of rules to the possible. E.g., extent concepts “employee” the common law Aguilera v. Cook County “independent Police and Cor- contractor” to define Board, rections Merit coverage. 847-48 the limits of the Act’s We are acknowledge Holmes, Jr., 7. We the brief of amicus curiae 1. Oliver Wendell The Common Law Wisconsin, Inc., by Legal sup- filed porting 111-13, Action of (1881). 123-26 the view that the harvesters are employees, contractors. instead, My colleagues migrant admit that seeking, to determine “economic working controlled their own workers reality.” methods, picking hours and but discount “indepen implies that the definition of This grounds these facts on the that what in tort cases is incon used dent contractor” “right counts is Lauritzen’s to control ... reality” but that sistent with “economic (at pickle-farming operation” the entire cap in cases applied FLSA seven factors 1536). so, Pittsburgh If this is Plate Glass way In did “eco “reality.” ture that “employee” an of General must be Motors In American Law reality” nomic elude “the entire automo- because GM controls 50 states? What courts of stitute and the manufacturing process” in bile which wind- tort FLSA and kind differences between shields from are used. This method PPG A under definition justified? cases are employee. analysis everyone makes an legisla application of social which “in the The second factor is whether the worker as a matter are those who tion (or profit exposed is opportunity has an dependent upon the reality are of economic loss) through application of to a risk of they render service” business to which colleagues say managerial My skills. 126, 130, (Bartels Birmingham, 332 U.S. “employment” this indicates here because (1947)) 1547, 1549, 91 L.Ed. 1947 67 S.Ct. nothing except each worker has “invested help to isolate the elements of does not gloves, for the cost of ... work and there- “reality” that matter. 1536). (at to lose” fore no investment [has] Consider, too, my col- the seven factors opportunity profit But the to obtain first leagues from the cases. The is distill management efficient is not the same as supposed employer the extent to which capital of loss. exposing a stock of to a risk right control the possesses a workers’ (That factor, subject is the third discussed This is the core of the com- performance. below.) analyzing opera- A consultant parties agree mon law definition. may line furnish assembly tion of an also prescribe did not or monitor Lauritzen except stopwatch, pencil, few tools for a migrant of work but in- workers’ methods unques- clipboard, person a but such weight output, stead measured tionably independent contractor. The is an picked. Lauritzen did kind of cucumbers “managerial” deploying lie in skill negoti- say who could work but instead efficiently. The head of each work force migrant only ated with the head of each migrant family family decides which mem- long works, family. long, plot Lauritzen did not control how on what bers for how managerial sort of family This land. That the same each member worked. work, customarily by supervisors made decision shall absence of control over who organization. in a hierarchical when, how, strongly suggests inde- pendent contractor relation at common law. my colleagues' list is the work- Third Orleans, Cf. United States v. U.S. materials, equipment er’s investment 1975-76, 813-16, 48 L.Ed.2d S.Ct. is, physical capital. The record is (lack (1976) of control over “detailed possess clear that the workers lit- indepen- physical performance” establishes physical capital.2 This is true of tle or no dent contractor status as a matter of law many workers we would call Tort purposes of the Federal Claims lawyers, many of contractors. Think of Act). Perhaps could dictat- own The bar whom do not even books. methods, physical ed the workers’ identities capital sells human rather than op- person imply in favor of the capital, inferences run but this does not that law- yers “employees” of their clients under posing summary judgment. the motion for however, not, Physical capital in the successful harvest and mar- the same stake indeed thing “disproportionately (The keting crop. as a small stake in the receive 50% 13). pickle-farming operation” (slip op. The la- gross, plus housing and end-of- of Lauritzen’s gross income exceeds borers’ share of the farm’s bonuses.) season 50%, very large giving workers a the FLSA.3 grated operation”, which would distinguish tires but leave unanswered question factor, fourth whether the worker why the difference should possesses have a “special skill,” would exclude consequence. lawyers and others rich in capital. human workers, by contrast, poor Seventh and finally “depend- we have capital, augurs human so this factor ence.” dependence “Economic is more a conclusion of employment. just than another factor. It is instead the Fifth in the degree list is “the perma- of focus of all the other considerations.” at nency and duration the working of relation- 1538. The majority proceeds (id. at ship.” measured, This can be but it is hard omitted): citations why to see significant. it is Lawyers may The district court held that the migrants years work for single a client but be were economically dependent on the de- independent contractors; hamburger-turn- fendants during the harvest If season. ers at fast-food may restaurants drift from migrant the pickle families pickers, are job one yet to the next be they then pickles need pick to in to order throughout. workers who survive economically. The migrants picked Lauritzen’s cucumbers labor on clearly dependent are pickle on the busi- many different farms over the course of a ness, and the defendants, for their con- year, but work at pickle opera- full-time tinued employment and livelihood. That tion for more than a month. Surely an is why many of them year return after engineering consultant who worked full- year. The defendants contend that given time on job, a frequently and worked skilled migrant families are in in demand single manufacturer, with a but did five to the area do and not need defendants. jobs ten year, a would be an independent Were it not for the defendants the mi- contractor. What matters for the grant families would have to find some they workers: that many jobs other grower who would hire among float employers, or they that work them. they Until grower, found another for the full-time duration of the harvest? they would be unemployed. It is not a theory Without we cannot tell. necessary to show that workers are un- six, Factor number to “extent which able to find work other employ- the service rendered is an integral part of er to find workers are employees business,” the employer’s is one of those rather than contractors. “reality” bits of signifi- that has neither This is the nub of both the district court’s cance nor meaning. the em- Everything opinion my colleagues’ approach. Part ployer does is “integral” to its business— factually of it is unsupported. There is no why else do it? pick An omission to evidence pick families Lauritzen, cucumbers would be fatal to but only pickles “dependent are on the pickle then so would an omission plant to tell, business.” For all vines these or water can fami- them. An we omission to de- pick sign oranges California, lies building a would come to be fatal to an effort it, pick cucumbers, Wisconsin build does and move on this not imply that architects are to New apples. York to harvest “employees” We of know firms they want erect new work buildings. year-round, Ac- cucumbers quiring tires is integral to year-round business of harvested the United Chrysler, but the tires come indepen- point my colleagues’ States. of discus- dent Perhaps contractors. “integral” in of sion 2-4 is factors that these migrant this formulation “part could mean of inte- specialized workers are pickles. story among 3. A Telling current from the engineers electrical remove the third coil has I. you $10.00 it that top . analyzing after a harmonic destructive generators, vibration in one of Edison’s new Knowing .$4,990.00 coil to remove $5,000. Prof. Steinmetz an submitted invoice An Steinmetz, irate Edison demanded Stein- selling only itemization. expertise, para- was metz’s bill new said: digm independent of an contractor. year year, after and see 624 on to dependent Lauritzen be the families Now he a Lau- indicates that offers F.Supp. arrive at once pickle business If to work. return on their labor. satisfactory settle down ritzen’s farm cucumbers, the mi- away flood carried factors are of uncertain So the seven to find other pressed hard grants would ways in theory and import in cut both This, however, is true immediately. work also is curious its practice. The list employee or he anyone, mention the omission. It does not method engaged full-time on lawyer A contractor. common compensation. One feature to find may take a while complex case relation is com independent contractor unexpectedly set- case if the new business (common in the pensation by a flat fee depend- are no more Migrant workers tles. business) percentage or a construction of fertiliz- than are sellers ent on (the sharecropper and the invest revenues locality and er, trade of the rely on the who bank). picked who ment beyond grip of economic forces crop more than half received Lauritzen’s fixes control, person who and the their True, piecework proceeds of the sales. classic irrigation equipment, a Lauritzen’s are not inconsistent and commission sales of The independent contractor. conclusion “employee,” see Ruther as an with status is an artifact of dependence in this case 722, McComb, Corp. 331 U.S. Food v. ford is, subject post looking the ex —that (1947); 1473, 91 L.Ed. 1772 Mech 67 S.Ct. cucumber are in the the workers after Hotels, Ltd., 825 F.2d met v. Four Seasons they are de- whether fields. To determine Woman, (7th Cir.1987); Ltd. v. 1173 Silent Lauritzen, to look at we have pendent on (E.D.Wis.1984); Donovan, F.Supp. 447 585 arrangement ex ante. the here is that the the wrinkle are argument that workers The usual risk with the market Lauritzen. share employers frequently on “dependent” — price, gets part of the sales which Each monopsony for a concern about euphemism pick- the for may rise fall with demand or min- they are The coal —is immobile. that sea- supply of cucumbers each les and the town, lives company who er in weaver price collapses, the workers If the son. 50 miles to one textile mill and next door loss; they share the so too and Lauritzen next, wage less may offered a be price if the rises. is gain share the This necessary to than one that would ordinary employment. attribute of not an come to town. a new worker to induce sharing” arrangements Employees’ “profit advantage family of the takes employer sharing. Why loss rarely provide for things may that fracture and other ties irrelevant to the of should this be status regions, markets into small some labor migrant workers? fully may com- be less than each of factors, multiple we If are to have we workers, definition, Migrant by petitive. ap A have a trial. also should fact-bound one the ties that bind them have broken calling balancing of incom- proach a national They sell their skills in locale. mensurables, approach which no as they receive unlikely is market. It unique certainable rule determines a wage wage. That competitive less than the outcome, one in which the trier fact of if skills low—it will may be part. E.g., plays the principal Wisconsin the FLSA are common—and possess Trust v. Real Investment Wein Estate wage. It something say about 589, (7th Cir.1986). stein, 781 F.2d 597-99 however, to that get possible, is not legal overlay That there is a factual talking “dependence.” about conclusion question not affect the role of the does labor; dependent on of See Pullman-Standard trier fact. farm, change his his he move cannot 273, 285-90, 102 1781, Swint, 456 U.S. S.Ct. The work- crop planting cucumbers. after (“ultimate” 1788-90, (1982) L.Ed.2d 66 72 contrast, ers, go elsewhere can and will 602, questions); King, Mucha v. 792 F.2d money. offers too little if Lauritzen (7th Cir.1986) (“mixed” questions). 604-06 dealing with when majority’s observation Worthing- Seafoods, Inc. v. back See also that families come Icicle the fifth “factor” ton, (1986) (applying Rule Corp., S.Ct. Tandy 820, (7th F.2d Cir. 52(a) 1987) standards to a (emphasis determination that original). See In re Erickson, purposes); workers are “seamen” FLSA (7th 815 F.2d 1090 Cir.1987); Fireworks, 1042, Walton v. Brock v. Mr. W United Club, Consumers Inc., (5th Cir.1987) (treating 310-11 Cir.1986). definition To know how far is enough, far “employee” under FLSA as one we must ex- amine the fact). history and Given Icicle we functions of readily say, cannot the stat- ute. my (at -1535), colleagues as do “ultimate conclusion as to whether Unfortunately there is no useful discus- workers con- sion legislative in the debates about the tractors” is one drawing of law. The application of the agricultural FLSA to inferences from subordinate to “ultimate” workers. This drives us back gen- to more facts is if, a task for the trier of purposes eral gener- fact— FLSA in —those rule,

under the governing legal al, the infer- and those of the common law definition subject ences are to legitimate dispute. of the independent contractor. Section 2 of FLSA, 29 U.S.C. supplies part of § the need. Courts “to correct

II and as practical as rapidly eliminate”, 2(b), the § We should abandon these unfocused “labor conditions detrimental to the mainte- “factors” again. start language nance of the minimum standard of living place is the statute to start. Section necessary health, efficiency, general 3(g), 29 203(g), U.S.C. defines “employ” § well-being workers”, 2(a). recent- We § including permit “to suffer or to work”. ly summarized purposes of the over- This is “the broadest definition ‘... ever provisions time of the FLSA—which turn ” any included in one act.’ United States out to important (in be the ones here con- Rosenwasser, v. 360, 3, 323 U.S. 363 n. 65 junction with the provisions) child labor in 295, 3, S.Ct. 296 (1945), n. 89 L.Ed. 301 light parties’ of the apparent belief that the quoting Hugo Black, Sen. from the Act’s migrant workers regularly earn more than sponsor, Cong.Rec. (1937). 81 7657 No wage. the minimum Mechmet, See 825 wonder the common law definition of “inde F.2d at 1176: pendent contractor” does govern. purpose The first prevent was to work- Walling Co., v. Portland Terminal 330 willing ers (maybe desperation out of 148, 150-51, 639, U.S. 640, S.Ct. 91 L.Ed. ...) to abnormally long work hours from (1947); Beliz v. W.H. McLeod & Sons taking jobs away from pre- workers who Co., Packing 1317, 765 F.2d Cir. fer work to shorter In particular, hours. 1985). definition, in pas- written negotiate unions’ efforts to for overtime sive, sweeps in almost work done on provisions in bargaining agree- collective the employer’s premises, potentially any ments would compet- be if undermined work done for the employer’s or benefit ing, non-union firms were to free hire with the employer’s acquiescence. willing workers long to work hours with- We have been told to construe this stat- out overtime. The second purpose was broadly. ute Corp.; Food to spread work thereby Rutherford reduce un- Tony and Susan Alamo Foundation v. employment, by requiring the employer Labor, Secretary 290, 296, 471 U.S. pay to a penalty using of for fewer workers 1959, S.Ct. (1985). 85 L.Ed.2d 278 for the same amount of work as would Knowing end in does view not answer necessary if each worker worked a questions, hard for it does not tell us how shorter week. purpose The third was to go pursuit in of that end. Rodri- protect the overtime far workers them- — guez States, U.S.-, v. United long selves: might impair hours work 1391, 1393, S.Ct. (1987). 94 L.Ed.2d 533 their health or lead to more accidents “[A]lways question (which about a ‘remedial’ might endanger other as workers is, statute help how much was it well). intended purpose This may seem inconsist- give the benefited group?” allowing Moore ent with overtime if the work half, pays time and a concentrates on X the full incentive to take

employer premium right It is in maybe required over- care. allocation when X is position intended to assure that work- the best pay time to determine what care is compensated for appropriate, care, spread ers will at least be to take that or to working danger when tired. increased the risk of loss. See Anderson v. Mara Co., thon Petroleum 938-39 is not to purposes To recite these endorse (7th Cir.1986); Sykes, Alan O. The Eco- them; maybe, says, the FLSA as Liability, nomics Vicarious 93 Yale good by foreclosing more than does harm (1984). usually L.J. 1231 This follows the (such incentives packages desirable right to control the Someone who work. by reference to results rather payment surrenders control of the details of the hours) by reducing opportuni- than advantage work—often take of the ex- work, income, ties for and hence (= pertise capital) human of someone else workers, those, such as farm who precautions —cannot determine what readily profes- cannot enter white-collar appropriate; ignorance may his have been money working more while sions and make principal hiring indepen- reason for system place on Lau- fewer hours. person dent contractor. firm Such a yet efficient ritzen’s farm most specifies (design outputs building; owners, workers, devised—best for fence) paint the inputs. rather than the consumers alike—but whether it is efficient Imposing liability person on the judicial who does or not is none of our business. The might not control the implement Congress execution of the work function is to what pointless monitoring.6 did, Congress induce All the de- not to ask whether did the right thing.4 at 1176. tails of the common law con- Id. having right tractor doctrine to do with the purposes Congress identified § to control the work are addressed to iden- strongly sug- amplified and we Mechmet tifying precaution-tak- the best monitor and applies gest the FLSA er. farm We also observed in Mech- workers. designed pro- that the statute was met blocking The reasons vicarious liabili- tect workers without substantial human particular point nothing ty at a to do capital, who therefore earn the lowest The inde- functions FLSA. wages. No one doubts that farm pendent contractor will have its own em- capital; workers are short on human an ployees, who will be covered the Act. occupation quickly5 that can learned someone, “employees” Electricians are of pay great does not rewards. though even the electrical subcontractor is employee general contractor. not the The functions of the call cover- FLSA for Indeed, independent the details of contrac- age. the functions of inde- How about fundamentally tor relations are contractu- pendent contractor doctrine? This is a dealings Firms can their al. structure as law, designed identify of tort branch “employment” “independent contractor” (and wrong is who answerable a there- efficiency to maximize the of incentives to fore, indirectly, to determine who must work, monitor, precautions. and prevent say “X take Cf. injuries). take care to To Rubin, Moore; Theory Paul H. The say contractor” is to an of liability chain of vicarious runs from Firm and the Economics the Franchise of Contract, (1978). stops X’s to X but there. This J.L. & Econ. 223 whether, likely, parties parties dispute "quickly" seems can 5. The whether 4.Or means minutes, change days only cope If but the a in the rule. the Act difference is un- important purposes. system for current applies, a Lauritzen can maintain price the cucumbers will incentives tied to the keep parties The farm must records and ensure fetch. If the could re-contract at no cost statutory course, payment damages, that minimum; exceeds the total about the allocation of it this, produce change parties indiffer- if it does the FLSA is would no at all if both Coase, is deter- were solvent. R.H. ent to the device which the excess The Problem So- Cost, (1960). cial 3 J.L. & Econ. 1 mined. designed to FLSA is defeat rather than and in long run must do so to attract implement arrangements. contractual If workers. employees voluntarily accept contract There are hard cases under approach hour, per agreement is ineffectu- $2.00 limned, I have but this is not one of them. Walton, See 786 F.2d at In al. 305-06. Migrant farm hands are “employees” un- past other FLSA cases we have looked der the regard FLSA—without crop E.g., Mechmet, terms. contractual 825 and the contract in can, each case. We and (“[w]e weight F.2d at 1177 attach no to the should, away do with ambulatory balancing bargaining agree- fact that the collective in cases of this sort. Once know how ment between the Ritz-Carlton its and works, the FLSA employers, workers, and waiters describes waiters’ income Congress options. have their The longer charge ‘gratuity’ service as a rather keep we people dark, these in the the more ”).

than a ‘commission.’ In this sense “eco- chancy both the interpretive and the reality” nomic rather than form contractual amending process become. dispositive. is indeed selling nothing workers They their labor. physical have no capital capital and little human to vend.

This does not Willing- belittle their skills. hard,

ness work job, dedication to a health,

honesty, good are valuable

traits and all too pos- scarce. Those who sess these traits will find employment; HODGSON, M.D.; Horowitz, Jane Arthur (for those who do long) not cannot work M.D.; T., T., Z., Nadine Janet Ellen wage even at the minimum in the private P., J., Mary L., Kathy Heather Sharon sector. ap- But those to whom the FLSA M., M., Judy individually and on plies must include workers who possess persons similarly behalf of all other only dedication, honesty, good health. situated; P., Diane L. and Sarah Jackie baby-sitter “employee” So even H.; Clinic, Meadowbrook Women’s though working week, but a few hours a P.A., Planned Parenthood of Minneso the writer of “employ- novels is not an ta, nonprofit corporation; a Minnesota publisher ee” of the though renting even Women, Health Midwest Center only capital. human workers P.A., nonprofit corpora Minnesota on premises, doing labor the farmer’s re- tion; Women’s Center of Du Health petitive Payment tasks. piecework on a luth, nonprofit corpora Minnesota (e.g., per rate pound cucumbers) lc tion, Appellees, would not take these workers out of the Act, any payment more than sales department staff at a store on commission MINNESOTA; Rudy The STATE OF Per avoids the The link statute. of the mi- pich as Governor of State of Minne- grants’ compensation price to the market sota; III, Humphrey, Hubert H. as At- pickles is not fundamentally different torney General of the of Minneso- State piecework compensation. Just as the ta, Appellants. piecework adjusted rate may response 86-5423, Nos. 86-5431. (e.g., per to the market pounds, 1.1 if lc 10%), the market imposing falls the market Appeals, United States Court of piecework laborers, risk on so the mi- Eighth Circuit. grants’ percentage may adjusted share response (e.g., rising market Submitted June 1987. gross

55% if the market fall should Decided Nov. 10%) in order to relieve them of market Through adjustments risk. such up risk, end bearing the whole market

Case Details

Case Name: Secretary of Labor, United States Department of Labor v. Michael Lauritzen and Marilyn Lauritzen, Individually and Doing Business as Lauritzen Farms

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 8, 1988

Citation: 835 F.2d 1529

Docket Number: 86-2770

Court Abbreviation: 7th Cir.