# U.S. Department of Labor

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

U.S. Department of Labor

Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

In the Matter of:
ADMINISTRATOR, WAGE AND
HOUR DIVISION, UNITED STATES
DEPARTMENT OF LABOR,
PROSECUTING PARTY1,

ARB CASE NO. 2017-0046
ALJ CASE NO. 2015-MSP-00001
DATE: July 30, 2020

v.
WYRICK & SONS PINE STRAW,
RESPONDENT.
Appearances:
For the Administrator, Wage and Hour Division:
Nicholas C. Geale, Esq.; Jennifer S. Brand, Esq.; Paul L. Frieden, Esq.;
and Quinn Philbin, Esq.; U.S. Department of Labor, Office of the
Solicitor; Washington, District of Columbia
For the Respondent:
Ronald A. Mowrey, Esq. and Mark L. Mason, Esq.; Mowrey Law Firm,
P.A.; Tallahassee, Florida
Before: Thomas H. Burrell, Acting Chief Administrative Appeals Judge,
Heather C. Leslie and James A. Haynes, Administrative Appeals Judges
DECISION AND ORDER
PER CURIAM. This case arises under the Migrant and Seasonal Agricultural
Worker Protection Act (MSPA or the Act), 29 U.S.C. §§ 1801–1872, and its
1

The Decision and Order issued by the Administrative Law Judge did not refer to the
Administrator of the Wage and Hour Division of the U.S. Department of Labor as a party in the case
caption. The Administrator serves as the prosecuting party in this case.

2
implementing regulations at 29 C.F.R. Part 500. The Wage and Hour Division of the
U.S. Department of Labor (WHD) charged Respondent Wyrick & Sons Pine Straw
(Wyrick) with five violations of the MSPA. The United States Department of Labor
Administrative Law Judge (ALJ) Patrick M. Rosenow issued a Decision and Order
(D. & O.) on April 25, 2017 upholding the violations. On Wyrick’s Petition for
Issuance of a Notice of Intent to Modify and/or Vacate a Decision and Order, we
affirm in part, reverse in part, and remand for additional proceedings.
BACKGROUND AND PROCEEDINGS BELOW
Although the parties disagree as to the legal conclusions that should be
drawn in this case, the facts are largely not in dispute. Wyrick commercially sells
pine straw, which is the fallen needles of pine trees. D. & O. at 2. Pine straw is
collected and sold as a mulch alternative for landscaping and groundcover. Hearing
Transcript (TR) at 33, 255-57.
Wyrick did not own the land from which it harvested pine straw. Instead,
Wyrick entered into oral and written agreements with landowners which granted
Wyrick permission to access the land to conduct the harvest. D. & O. at 2;
Administrator Hearing Exhibit (AX) 4. Before harvesting, Wyrick’s employees
customarily entered the pine fields to apply herbicides to the land. D. & O. at 2; TR
at 246-49. Wyrick’s employees also customarily mowed and cleared the area where
harvesters would be collecting the pine straw. Id. This preparation and pretreatment could sometimes occur years or months before the actual harvest. TR at
344, 382-83.
Although Wyrick performed the field preparation and pre-treatment work
itself, Wyrick turned to contractors to supply the workforce for the harvest. D. & O.
at 3. Relevant to this appeal, Wyrick contracted with two individuals—the Crew
Chiefs—to recruit, hire, and supply laborers. Id. Under the supervision of the Crew
Chiefs, the laborers used pitchforks to rake pine needles into piles, used box balers
to manually compact the needles, tied needles with twine into bales, and loaded the
bales onto trailers. Id. The Crew Chiefs tallied the number of bales harvested each
week, and Wyrick paid them a fixed rate of $0.90 per bale. D. & O. at 3; AX 1.
Wyrick’s employees generally were not present in the fields supervising the harvest,
leaving the Crew Chiefs to manage that task independently. See TR at 219, 344,
375-76, 380; RX 23.

3
WHD, which is tasked with enforcing the MSPA, began an investigation of
Wyrick in March 2012 and determined that it was not in compliance with the Act.
AX 3, 12; TR at 30. WHD made the following determinations:
(1) Wyrick utilized the services of two unregistered farm labor contractors
(FLC)—the Crew Chiefs—in violation of 29 U.S.C. § 1842 and 29 C.F.R. §
500.71;
(2) Wyrick failed to keep records of each worker, in violation of 29 U.S.C. §§
1821(d), 1831(c), and 29 C.F.R. § 500.80(a);
(3) Wyrick failed to provide or post disclosures of employment conditions to
workers, in violation of 29 U.S.C. §§ 1821(a), 1831(a), and 29 C.F.R. §§
500.75(b), 500.76(b);
(4) Wyrick failed to provide each worker with a wage statement, in violation
of 29 U.S.C. §§ 1821(d)(2), 1831(c)(2), and 29 C.F.R. § 500.80(d); and
(5) Wyrick failed to display a MSPA poster in the work fields, in violation of
29 U.S.C. §§ 1821(b), 1831(b), and 29 C.F.R. §§ 500.75(c), 500.76(d)(1).
D. & O. at 4; AX 12. WHD assessed Wyrick a civil penalty totaling $2,525. Id.
Wyrick challenged WHD’s determination and requested a hearing with the
U.S. Department of Labor Office of Administrative Law Judges. Although Wyrick
conceded that it had not satisfied the foregoing requirements of the MSPA, it
argued that it was not subject to the Act. D. & O. at 3-4.
ALJ Rosenow was assigned to the matter and conducted a hearing on June
28 and 29, 2016. The ALJ issued the D. & O. on April 25, 2017, agreeing with WHD
that Wyrick was subject to the Act, but reducing the civil penalty to $1,825. Wyrick
appealed the matter to the Board.
JURISDICTION AND STANDARD OF REVIEW
The Administrative Review Board (ARB or Board) has jurisdiction over this
appeal pursuant to the MSPA and its implementing regulations, 29 C.F.R. §
500.263, as well as the Secretary’s Order No. 01-2020 (Delegation of Authority and
Assignment of Responsibility to the Administrative Review Board (Secretary’s
discretionary review of ARB decisions)), 85 Fed. Reg. 13,186 (Mar. 6, 2020). Under

4
the Administrative Procedure Act, we have plenary power to review an ALJ’s
factual and legal conclusions de novo. See 5 U.S.C. § 557(b); Gonzalez v. Adm’n,
ARB No. 2004-0178, ALJ No. 2002-MSP-00005 R & P, slip op. at 2 (ARB Mar. 29,
2007).
DISCUSSION
As its title suggests, the MSPA provides certain employment protections
designed to ensure the safety and fair treatment of migrant and seasonal
agricultural workers. As noted above, Wyrick concedes that it did not abide by the
requirements of the MSPA with respect to the laborers it used to harvest pine
straw, as cited by WHD—the Crew Chiefs were not registered as FLCs, and Wyrick
did not maintain employment records, issue wage statements, or make required
employment disclosures to the laborers. D. & O. at 3.
But, for Wyrick to be liable for any of the cited violations, the laborers must
have been “seasonal agricultural workers,”2 which is defined, in relevant part, as
individuals “employed in agricultural employment of a seasonal or other temporary
nature . . .” 29 U.S.C. § 1802(10)(A); 29 C.F.R. § 500.20(r). Wyrick argues that the
laborers were not engaged in “agricultural employment,” because pine straw is not
an agricultural or horticultural commodity. Wyrick also argues pine straw
harvesting is performed year-round, and, thus, the laborers employment was not of
a “seasonal or other temporary nature.”
In addition, for Wyrick to be liable for the recordkeeping, wage, and
disclosure requirements of the MSPA, Wyrick must have “employed” the laborers.
See 29 U.S.C. § 1831(a)-(c), 29 C.F.R. §§ 500.76(b), (d)(1), 500.80(a), (d).3 Wyrick
contends that the laborers were employed by the Crew Chiefs, and not by Wyrick.
We consider each argument in turn.
1. The Laborers Were Engaged in Agricultural Employment Because Pine
Straw is an Agricultural Commodity

2

Although the MSPA protects both migrant and seasonal agricultural workers, WHD has
not argued that the laborers qualified as migrant agricultural workers under the Act.
3

In contrast to the recordkeeping, wage, and disclosure requirements, liability for utilizing
unregistered FLCs does not depend on whether Wyrick “employed” the laborers. See 29 U.S.C. § 1842;
29 C.F.R. § 500.71.

5
The MSPA provides that agricultural employment means:
employment in any service or activity included within the
provisions of section 3(f) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 203(f)), or section 3121(g) of Title 26
and the handling, planting, drying, packing, packaging,
processing, freezing, or grading prior to delivery for
storage of any agricultural or horticultural
commodity in its unmanufactured state.
29 U.S.C. § 1802(3) (emphasis added); 29 C.F.R. § 500.20(e). The question presented
to the Board is whether the pine straw harvested by the laborers in this case
qualifies as an “agricultural or horticultural commodity.”
Although the MSPA and its implementing regulations do not define the term,
the implementing regulations of the Fair Labor Standards Act (FLSA) define
“agricultural or horticultural commodities” as “commodities resulting from the
application of agricultural or horticultural techniques.” 29 C.F.R. § 780.112. More
specifically, “products of the soil” are considered agricultural or horticultural
commodities when they are “planted and cultivated by man.” Id. The regulations
contrast agricultural or horticultural commodities with wild commodities, which are
produced by the exploitation of natural resources or by uncultivated natural growth,
such as mosses, wild rice, burls, and laurel plants. 29 C.F.R. § 780.114. But,
commodities that typically grow wild may nevertheless become agricultural or
horticultural commodities if they are “actually cultivated.” Id.
The ALJ ruled that pine straw is an agricultural or horticultural commodity,
and the laborers were engaged in agricultural employment, based on the Eleventh
Circuit’s holding in Morante-Navarro v. T & Y Pine Straw, Inc., 350 F.3d 1163 (11th
Cir. 2003). D. & O. at 21. In that case, harvesters pursued a private cause of action
against their employer, a wholesaler of pine straw, under the MSPA. MoranteNavarro, 350 F.3d at 1165. After considering the history and purpose of the MSPA
as well as the definitions contained in the FLSA regulations, the Eleventh Circuit
determined pine straw was an agricultural commodity because the workers
employed agricultural techniques to cultivate it. Id. at 1167-70. Specifically, before
harvesting could take place, the fields had to be mechanically and manually cleared
of ground debris and vegetation. Id. at 1165. Workers used mechanical “bush hogs”
to mow and clear the underlying growth, and manually cleared loose branches and
pine cones. Id. The Eleventh Circuit determined this site preparation work and the

6
techniques employed by the workers to allow the harvest to take place constituted
“cultivation.” Id. at 1170.
We agree with the ALJ and the Administrator that the circumstances
presented in our case are nearly identical in all material respects to MoranteNavarro, and we are persuaded by the Eleventh Circuit’s analysis and decision that
the pine straw here is an agricultural commodity. In both cases, the land had to be
cleared and prepared through the use of various agricultural techniques before the
pine straw could be harvested. In fact, the techniques employed by Wyrick here
were more involved than those employed in Morante-Navarro. Whereas in both
cases workers manually and/or mechanically prepared the land, here Wyrick took
the additional step of preparing and pre-treating the pine fields by applying
herbicides.
Wyrick’s argument that the techniques employed here and in MoranteNavarro did not amount to “cultivation” are unavailing. Months or years in advance
of a harvest, Wyrick cleared, pre-treated, and prepared the land. These preharvesting activities required planning, foresight, and the measured application of
agricultural techniques for the purpose of rendering the pine straw harvestable and
marketable. Although Wyrick did not itself grow the pine trees, its efforts
nonetheless constituted cultivation of the pine straw product.
Accordingly, we affirm the ALJ’s ruling that the laborers here were
agricultural workers under the MSPA, insofar as they harvested pine straw, an
agricultural commodity.
2. We Remand on the Issue of Whether the Laborers Were Employed on a
Seasonal Basis
For the laborers to be afforded the protections of the MSPA, their
employment must have been of a “seasonal nature.” See 29 U.S.C. § 1802(10)(A); 29
C.F.R. § 500.20(r). Laborers are employed on a “seasonal” basis where their
employment “pertains to or is of the kind exclusively performed at certain seasons
or periods of the year and which, from its nature, may not be continuous or carried
on throughout the year.” 29 C.F.R. § 500.20(s)(1).
The evidence presented at the hearing suggested that at least some
harvesting could take place year-round, although there were fluctuations in the
volume of harvesting at various points in the year due to weather or market
conditions. Rather than weighing the evidence to determine whether the variations

7
rendered the harvesting “seasonal” as defined by regulation, the ALJ, relying on
another Eleventh Circuit case, Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d
1500 (11th Cir. 1993), ruled that the laborers were employed on a seasonal basis
because they were performing “field work.” D. & O. at 22. This ruling was in error.
In Caro-Galvan, the plaintiffs harvested fern crops and performed other field
work for the defendant-farm. Caro-Galvan, 993 F.2d at 1502. Although ferns were
grown and harvested year-round, most harvesting occurred between January and
May due to a combination of conducive weather conditions and market demand. Id.
During the January to May prime season, the workers were able to harvest enough
ferns to earn minimum wage. Id. But, the harvest was so light during the June to
December off-season that the workers could not earn minimum wage exclusively
from harvesting ferns, and had to turn to other types of work on the farm to
supplement their income. Id.
The fact that the fern harvesting diminished so severely during the off-season
that the workers were not even able to earn minimum wage from harvesting alone
led the Eleventh Circuit to conclude that the workers were “seasonal” under the
MSPA. Id. at 1508. Although the workers remained employed with the farm yearround, the regulations specifically contemplated that “seasonal” workers may shift
from one type of seasonal work to another. 29 C.F.R. § 500.20(s)(1).
Of particular significance to the ALJ’s ruling in this case, the Eleventh
Circuit also commented in Caro-Galvan that “[if] the worker performs ‘field work,’
he or she is employed on a seasonal or temporary basis.” Id. The Eleventh Circuit
derived this rule from 29 C.F.R. § 500.20(s)(4), which provides that a worker is not
seasonal when he or she is employed on “essentially a year round basis to perform
a variety of tasks for his employer and is not primarily employed to do field
work” (emphasis added).4 Attempting to apply a contrapositive, the Eleventh
Circuit concluded that because a worker is not seasonal if he is not performing field
work, then a worker performing field work is employed on a seasonal basis. See
Caro-Galvan, 993 F.2d at 1508.
4

§ 500.20(s)(4) reads as follows:
On a seasonal or other temporary basis does not include the
employment of any worker who is living at his permanent place of
residence, when that worker is employed by a specific agricultural
employer or agricultural association on essentially a year round basis to
perform a variety of tasks for his employer and is not primarily employed
to do field work.

8
Despite believing that “an interpretation which expands the word seasonal to
include year-round uninterrupted field work reflects a marked departure from clear
statutory language,” the ALJ felt he was compelled to follow the Caro-Galvan
pronouncement that all field work is seasonal work. D. & O. at 22. The ALJ’s
reservation about applying this rule was appropriate. We find that the Eleventh
Circuit’s pronouncement that all field work is seasonal work is contrary to the plain
language of the MSPA and its implementing regulations and was dicta which the
ALJ should not have followed.
We start, as we must, with the plain language of the MSPA. Congress defined
a “seasonal agricultural worker,” in pertinent part, as one “employed in agricultural
employment of a seasonal or other temporary nature . . . when employed on a
farm or ranch performing field work related to planting, cultivating, or
harvesting operations . . . .” 29 U.S.C. § 1802(10)(A) (emphasis added). Thus,
“seasonal” work and “field work” were plainly envisioned by Congress as separate
and distinct requirements, both of which must be satisfied for the worker to qualify
for protection under the Act.
Accordingly, the MSPA’s implementing regulations also separately define the
terms “seasonal” and “field work.” As set forth above, “seasonal” work is that which
is “ordinarily” “of the kind exclusively performed at certain seasons or periods of the
year . . . .” 29 C.F.R. § 500.20(s)(1). Field work is defined as operations on a farm or
ranch which “are normally required to plant, harvest or produce agricultural or
horticultural commodities . . . .” 29 C.F.R. § 500.20(r)(2)(ii). Notably, “field work” is
defined without temporal or seasonal limitations, and, therefore, could encompass a
greater scope or variety of work than work performed only on a seasonal basis.
Stated another way, field work may be seasonal, but only if it also satisfies the
temporal limitations imposed by the regulatory definition of “seasonal.” See
Bautista Hernandez v. Tadala’s Nursery, Inc., No. 12-61062-CIV-SELTZER, 2013
WL 12043485, *5 (S.D. Fl. Oct. 21, 2013).
Moreover, had Congress intended for all field work to be covered by the
MSPA, there would have been no purpose in limiting the MSPA’s coverage to
workers employed on a “seasonal” basis. The “seasonal” limitation could have been
excluded from the statute, leaving “field work,” alone, as the operative concept for
coverage for workers like those at issue here. See Bautista Hernandez, 2013 WL
12043485 at *5 (“Indeed, had Congress intended that all field workers be deemed
seasonal workers, it is reasonable to conclude that it not only would have foregone
any temporal limitations, but also would have substituted the term ‘field worker’ for

9
‘seasonal agricultural worker.’”); Ramirez v. DeCoster, 194 F.R.D. 348, 357 (D. Me.
2000) (“Here, Congress has used plain language that simply will not encompass
these workers, because their work is neither seasonal nor temporary. Congress
could have left those limiting criteria out of the Act and extended its protection to
any employee who engaged in agricultural-related labor and who left his home to be
so engaged, but Congress chose not to.”). But, that is not how Congress wrote the
MSPA, nor how the Department of Labor wrote the implementing regulations.
We recognize that our holding is contrary to the Department of Labor’s
preamble to the regulatory definition of “seasonal,” which agrees with the Eleventh
Circuit that all field work is, by definition, seasonal work. See Migrant and
Seasonal Agricultural Worker Protection Regulations, 48 Fed. Reg. 36,736, 36,737
(Aug. 12, 1983). Although the preamble can inform the interpretation of the
regulation, the preamble is not binding. When a preamble conflicts with the plain
language of the regulation, the regulation controls. Peabody Twentymile Mining,
LLC v. Sec’y of Labor, 931 F.3d 992, 998 (10th Cir. 2019); Boose v. Tri-Cnty. Metro.
Transp. Dist. of Oregon, 587 F.3d 997, 1005 (9th Cir. 2009); Barrick Goldstrike
Mines, Inc. v. Whitman, 260 F. Supp. 2d 28, 36 (D.D.C. 2003).
In addition, although the ALJ determined he was compelled to follow CaroGalvan’s statement that all field work is seasonal work because this case arises
within the jurisdiction of the Eleventh Circuit, we regard the Eleventh Circuit’s
proclamation as non-binding dictum. The central holding of Caro-Galvan was that
the workers were seasonal because the fern harvesting diminished so severely in
the off-season that they could not earn minimum wage and were compelled to move
to other tasks. Under those facts, the Eleventh Circuit ruled (and rightly so) that
the work met the regulatory definition of seasonal.
The Eleventh Circuit’s additional proclamation that all field work is seasonal
work extended further than the facts of the case, and was not necessary to the
decision given the facts and circumstances presented there. See Pretka v. Kolter City
Plaza II, Inc., 608 F.3d 744, 762 (11th Cir. 2010). As stated by the Southern District
of Florida in Bautista Hernandez5, which also grappled with Caro-Galvan’s ruling,
the statement that all field work is seasonal work could have been omitted from the
decision without impairing the court’s analytical foundation regarding the seasonal
fluctuation of fern harvesting. Bautista Hernandez, 2013 WL 12043485, at *5; cf.
Ramirez, 194 F.R.D. at 357 (reconciling Caro-Galvan with the statute by finding
5

The analysis in Bautista Hernandez is particularly compelling because the Southern
District of Florida falls under the jurisdiction of the Eleventh Circuit.

10
that its central holding—that the fern growing was seasonal because of the
significant fluctuation in work—could be read consistently with the plain language
of the MSPA).
For these reasons, we hold that the ALJ erred in ruling that the laborers here
were employed on a seasonal basis merely because they performed field work. We
remand the matter to the ALJ to make findings as to whether the laborers were
employed on a seasonal basis, without being restrained by the notion that all field
workers are employed on a seasonal basis under the Act.
In making this determination, the ALJ must be guided by the express
language of the regulatory definition of “seasonal.” That is, the ALJ must decide if
the harvesting of the pine straw by the laborers, ordinarily, is of the kind
exclusively performed at certain seasons or periods of the year and which, from its
nature, may not be continuous or carried on throughout the year. See 29 C.F.R. §
500.20(s)(1). The ALJ may consider, among other things, the frequency, duration,
and severity of any fluctuations that occurred in the harvesting of pine straw, the
transience of or level of turnover in the workforce triggered by the nature of the
harvest, whether the laborers were compelled to find other work due to fluctuations
in the harvest, the ability or feasibility of harvesting pine straw in different seasons
or periods of the year, and changes in market demand for pine straw in different
seasons or periods of the year.
As the central holding of Caro-Galvan makes clear, it is possible that the
laborers were employed on a seasonal basis despite the fact that some minimal level
of harvesting could occur year-round. But, the definition of “seasonal” clearly
requires more than mild fluctuations or variations in the level of work available. We
remand to the ALJ to make this determination based on the evidence presented.
3. Wyrick Did Not Jointly Employ the Laborers
The final issue presented for review is whether Wyrick “employed” the pine
straw laborers. Wyrick had no obligation to keep records, provide disclosures,
display posters, or provide wage statements to the laborers under the MSPA if it did
not “employ” them. See 29 U.S.C. § 1831(a)-(c); 29 C.F.R. §§ 500.76(b), (d)(1),
500.80(a), (d).

11
Although Wyrick retained the laborers’ services indirectly through the Crew
Chiefs6, Wyrick could nonetheless be liable as the laborers’ joint employer under the
Act. See 29 C.F.R. § 500.20(h)(5). Wyrick will be considered the laborers’ joint
employer if, as a matter of economic reality, the laborers were dependent upon
Wyrick. See 29 C.F.R. § 500.20(h)(5)(iii); Antenor v. D & S Farms, 88 F.3d 925, 929
(11th Cir. 1996). The implementing regulations provide several factors that may be
considered in determining whether or not a joint employment relationship exists:
(1) Whether the putative employer has the power, either alone or through
control of the contractor, to direct, control, or supervise the workers or the
work performed;
(2) Whether the putative employer has the power, either alone or in addition to
the contractor, directly or indirectly, to hire or fire, modify the employment
conditions, or determine the rates or the methods of payment for the workers;
(3) The degree of permanency and duration of the relationship of the putative
employer and the workers;
(4) Whether the services rendered by the workers are repetitive, rote tasks
requiring skills which are acquired with relatively little training;
(5) Whether the activities performed by the workers are an integral part of the
overall business operation of the putative employer;
(6) Whether the work is performed on the putative employer’s premises; and
(7) Whether the putative employer undertakes responsibilities in relation to the
workers which are commonly performed by employers.
29 C.F.R. § 500.20(h)(5)(iv)(A)-(G); see also Martinez-Mendoza v. Champion Int’l
Corp., 340 F.3d 1200, 1208-14 (11th Cir. 2003) (applying the regulatory factors).
These factors are not exclusive, and no single factor is determinative. 29 C.F.R. §
500.20(h)(5)(iv); Antenor, 88 F.3d at 932. Significantly, the factors must be weighed
qualitatively, not quantitatively based on a strict mathematical formula. Antenor,
88 F.3d at 933.

See Administrator’s Opening Post-Hearing Brief at 22 (stating the “undisputed material
facts show that Respondent hired laborers through [the Crew Chiefs] . . . .”).
6

12
The ALJ determined that Wyrick jointly employed the laborers supplied by
the Crew Chiefs. Although the ALJ considered some of the foregoing factors, he
ignored others, in whole or in part. Weighing the regulatory factors and guiding
principles based on all of the facts and circumstances of this case, we conclude that
the laborers were not so economically dependent on Wyrick as to render Wyrick
their joint employer.
A. Control and Supervision
We find that Wyrick did not control the laborers performing its harvest.
Control, in the context of the MSPA, typically exists where the putative employer
takes an active role in the oversight of the work, making such decisions as whom
and how many employees to hire, whom to assign to specific tasks, when work
should begin or end each day, when a particular field will be harvested or planted,
and whether a worker should be disciplined or retained. Martinez-Mendoza, 340
F.3d at 1209-10 (citing Charles v. Burton, 169 F.3d 1322, 1329-30 (11th Cir. 1999)).
As articulated by the Eastern District of California, we ask:
[D]oes [the putative employer] provide oversight and
direction on how to carry out the job or simply point the
workers (or FLC) in the direction of the field and instruct
on the job generally? Does it control the dates, times, and
locations for work to be accomplished or does it simply
instruct the FLC on the agricultural specifications of the
job?
Perez v. Valley Garlic, Inc., No. 1:16-CV-01156, 2017 WL 772147, *6 (E.D. Cal. Feb.
27, 2017).
There is no evidence that Wyrick had any involvement in who or how many
workers to hire, which laborers were assigned to specific tasks, how work schedules
were determined, or when work should begin or end each day. To the contrary,
Wyrick’s representative provided unrebutted7 testimony that he did not know how
many workers the Crew Chiefs employed to harvest the straw, did not tell them
7

No Crew Chiefs or laborers testified at the hearing or provided depositions. The only
information we have from the laborers comes from five brief statements taken at the start of WHD’s
investigation. See AX 18, 19. It is clear from those statements that the investigators were primarily
concerned at that time with assessing whether the duties required by the MSPA were being satisfied, and
not whether the MSPA was applicable to these laborers or to Wyrick. Most of Wyrick’s testimony
relevant to the joint employer analysis, therefore, was unrebutted.

13
what hours they were expected to work, and did not set any minimum or maximum
number of bales that Wyrick expected them to harvest. TR at 342-43, 350. His
testimony is consistent with the independent contractor agreements between
Wyrick and the Crew Chiefs, which stated the contractors were to perform a
specified service, and had “sole control over the means in which the specified service
is completed.” Respondent’s Hearing Exhibit (RX) 23.
Thus, Wyrick was concerned with the end product, and left it to the Crew
Chiefs to control the means of production. These facts contrast sharply with the
types of control courts have found indicative of joint employment in other cases.
Compare Antenor, 88 F.3d at 934 (control where defendant told FLC how many
workers it required each day, when picking could commence each day, and when
work should be delayed or stopped), and Luna v. Del Monte Fresh Produce (Se.),
Inc., No. 1:06-cv-2000-JEC, 2008 WL 754452, *4 (N.D. Ga. Mar. 19, 2008) (control
where defendant determined how many workers were needed, which fields to work,
how many workers to assign to specific tasks, and the days on which specific work
would begin), with Martinez-Mendoza, 340 F.3d at 1210-11 (no control where
defendant did not assign laborers or tasks, design the laborers’ work schedule, or
implement discipline), and Aimable v. Long & Scott Farms, 20 F.3d 434, 440-41
(11th Cir. 1994) (no control where it was FLC’s responsibility to determine, recruit,
and compensate the necessary number of workers).
The Administrator argues Wyrick indirectly controlled the laborers by setting
an “expectation” that the Crew Chiefs and laborers had to meet—raking, baling,
and loading pine straw—and by determining the fields that the laborers would
harvest.8 Deputy Administrator’s Response Brief (Admin. Br.) at 20. But, in
amending the MSPA’s regulations, the WHD made clear that defining standards or
requirements for a contractor to meet does not establish control over the
contractor’s workers. Migrant and Seasonal Agricultural Worker Protection Act, 62
Fed. Reg. 11,734, 11,739-40 (Mar. 12, 1997). Courts have held such “agricultural
decisions”—like setting standards, specifications, or expectations for the harvest, or
choosing which fields to pick on which days—do not create the type of control
contemplated by the MSPA. See Martinez-Mendoza, 340 F.3d at 1210-11; Aimable,
20 F.3d at 440-41. Although making certain agricultural decisions “might indirectly
affect how many workers need to be hired, they still do not show ‘control[.]’” GarciaCelestino v. Ruiz Harvesting, Inc., 898 F.3d 1110, 1126 (11th Cir. 2018).
8

Although Wyrick determined when fields were ready to harvest, even then Wyrick
generally gave the Crew Chiefs their choice of fields. The Crew Chiefs could pass on fields which they
were not interested in harvesting. TR at 251-53, 278.

14
We also find that Wyrick did not supervise the laborers. “[I]t is well settled
that supervision is present whether orders are communicated directly to the laborer
or indirectly through the contractor.” Antenor, 88 F.3d at 935 (quoting Aimable, 20
F.3d at 441). “On the other hand, infrequent assertions of minimal oversight do not
constitute the requisite degree of supervision.” Martinez-Mendoza, 340 F.3d at 1211
(citing Charles, 169 F.3d at 1330).
The Administrator presented no evidence or testimony from the laborers, or
others, suggesting that they ever received any orders, direction, or instruction from
Wyrick. In fact, a WHD investigator confirmed that no laborer ever stated anyone
from Wyrick ever came to the field and supervised or directed them to do anything.
TR at 219. Wyrick’s representative also testified that he never went to the fields to
direct or supervise the harvest. TR at 344. Although Wyrick’s representatives did
come to the fields to pick up loaded trailers, occasional presence does not serve as a
proxy for supervision. See Martinez-Mendoza, 340 F.3d at 1211; Aimable, 20 F.3d at
441.
Once again, the evidence presented here contrasts sharply with cases in
which the putative employer was found to have supervised the workers. Cf. Antenor,
88 F.3d at 934 (supervision where defendant directly oversaw and intervened in the
laborers’ work); Torres-Lopez v. May, 111 F.3d 633, 642-43 (9th Cir. 1997)
(supervision where defendant had right to inspect work as it was being performed
and maintained constant presence in the field); Sejour v. Steven Davis Farms, LLC,
28 F. Supp. 3d 1216, 1228-29 (N.D. Fl. 2014) (supervision where defendant visited
field several times a day to check progress, often picked with the workers, and
instructed crew on how to pick); Luna, 2008 WL 754452, at *4 (supervision where
defendant spent up to three hours every day observing the progress of work and
confronted workers directly if problems were observed).
The Administrator argues that Wyrick indirectly supervised the laborers by
making deductions in pay for bad or rejected bales. Admin. Br. at 20. It is true that
in the event a bale presented for sale was rejected by a customer, Wyrick made a
retroactive deduction to the amounts paid to the Crew Chiefs. But, even then,
Wyrick typically only notified Crew Chiefs of the defect in the bale, which usually
resolved the problem. TR at 274-75, 364-66. This type of indirect quality control, on
its own, does not amount to supervision of the workforce. See Arrendondo v. Delano
Farms Co., 922 F. Supp. 2d 1071, 1077-78 (E.D. Cal. 2013).

15
B. Ability to Hire or Fire, Modify Employment Conditions, and Determine
Rates and Methods of Pay
The next factor asks whether the putative employer can hire or fire the
workers, make business decisions that impact the worker’s employment conditions,
such as determining the number of hours to be worked each day, or dictate the
method and rates of pay. 29 C.F.R. § 500.20(h)(5)(iv)(B).
There is no evidence suggesting Wyrick had a hand in hiring or firing the
laborers. Wyrick’s representative testified, without rebuttal, that Wyrick did not
hire or fire any of the laborers, and, furthermore, had no idea who or how many
laborers the Crew Chief’s employed. TR at 346, 350. The Crew Chiefs contracted to
provide the labor to Wyrick, and laborers who provided statements to WHD
investigators stated they were hired by the Crew Chiefs. See D. & O. at 3; AX 18,
19.
In addition, there is no evidence that Wyrick modified or controlled the
laborers’ employment conditions. There is no evidence Wyrick set their working
hours, assigned laborers to specific tasks or fields, or dictated any other terms and
conditions of the laborers’ employment. See TR at 342-43, 350.
It is also undisputed that Wyrick did not pay the laborers directly. Instead,
Wyrick paid the Crew Chiefs per bale ($0.90), and the Crew Chiefs paid their own
laborers. D. & O. at 3, TR at 344; AX 1. Even so, the Administrator argues that
Wyrick at least indirectly controlled the laborers’ rates and method of pay by setting
suggested piece rate prices for each of the tasks performed by the laborers. Admin.
Br. at 19.
It is true that Wyrick identified a piece rate of $0.70 for baling and $0.10 for
loading each bale on the Crew Chiefs’ pay statements. AX 1. And, as the
Administrator emphasized, the laborers were, in fact, paid those rates. AX 18, 19.
However, Wyrick’s representative testified that the rates on the pay statements
were mere suggestions which tracked local industry standards, and that it was up
to the Crew Chiefs to determine how much the laborers were actually paid. TR at
272-73, 344. He also testified that despite suggesting pay rates, he did not know
how much the Crew Chiefs actually paid the laborers. TR at 344. Although the
actual pay rates did track Wyrick’s suggestions, the Administrator presented no
other evidence that the Crew Chiefs were beholden to, or even swayed by, the rates
indicated on the pay statements, or evidence that Wyrick prohibited or dissuaded

16
the Crew Chiefs from setting their own pay rates for the laborers. We are not
persuaded that Wyrick controlled the laborers rates or methods of pay merely
because the laborers’ actual pay tracked Wyrick’s recommendations.
C. Permanency and Duration of Relationship
Recognizing that most agricultural work is seasonal or temporary, courts
have generally found a sufficiently permanent relationship for purposes of the joint
employment analysis where contractors and their workers return to work for the
putative employer year-after-year, or where the contractors supply their workers
primarily to one putative employer during a specific harvest or planting period. See
Charles, 169 F.3d at 1332 (collecting cases). “Where an FLC and its workers are
engaged for the duration of the operation and are obligated to work exclusively for
the employer at its discretion, this factor would suggest economic dependence.”
Martinez-Mendoza, 340 F.3d at 1212 (citing Migrant and Seasonal Agricultural
Worker Protection Act, 62 Fed. Reg. at 11,740).
The ALJ found that the laborers “consistently accepted the crew chiefs’
invitations to gather pine straw for Wyrick,” thus indicating a somewhat permanent
relationship. D. & O. at 24. The ALJ provided no specific citation for this assertion,
and we find the evidence does not support the ALJ’s conclusion. Although invoices
reflected that two individuals—identified only as “Tio” and “Alex”—consistently
worked for Wyrick as loaders, the Administrator points to no other evidence in the
record regarding who the other laborers were or how long any other laborers
remained engaged with Wyrick. See AX 1. Wyrick’s representative also testified
that the company did not prohibit the Crew Chiefs from working other land, and
nothing in the written agreement between the Crew Chiefs and Wyrick indicates
exclusivity in their relationship. TR at 346; RX 23.
Furthermore, the statements obtained from the laborers suggest a high level
of turnover and a lack of permanency in the harvesting workforce. Of the five
laborers who provided statements, three had worked for Wyrick for three months or
less, and the longest tenured laborer had only worked for Wyrick for eight months.
AX 18, 19. Additionally, one laborer stated that the laborers “come and go as they
want,” and another indicated that he was previously part of a larger crew, but there
were only two people left by the time of the investigation. AX 18 (Statements of
Nancy Alfaro and Manuel Lopez). As a result, we find that the evidence does not
establish a permanent relationship between Wyrick and the workforce.

17
D. Degree of Skill Required
“The lower the worker’s skill level, the lower the value and marketability of
his/her services and the greater the likelihood of his/her economic dependence on
the person utilizing those services.” Charles, 169 F.3d at 1332 n.14 (quoting
Migrant and Seasonal Agricultural Worker Protection Act, 62 Fed. Reg. at 11,74041). The parties stipulated that no training or education was required for the
laborers to perform the harvest, except a short amount of time to learn to use the
manual baler. D. & O. at 3. Therefore, we agree with the ALJ and the
Administrator that raking and baling pine straw required little skill.
E. Integral to Business Operations
“[A] worker who performs a routine task that is a normal and integral phase
of the [putative employer’s] production is likely to be dependent on the grower’s
overall production process.” Martinez-Mendoza, 340 F.3d at 1213 (quoting Antenor,
88 F.3d at 937). A task or activity is considered “integral” to an employer’s business
when that employer “would be virtually certain to assure that the function is
performed, and would obtain the services of whatever workers are needed for this
function.” Id. (quoting Migrant and Seasonal Agricultural Worker Protection Act, 62
Fed. Reg. at 11,741). Wyrick is a pine straw wholesaler, and the laborers harvested
pine straw for Wyrick to sell. We agree with the ALJ and the Administrator that
the raking and baling performed by the laborers was therefore integral to Wyrick’s
business.
F. Performed on Wyrick’s Premises
The putative employer’s ownership of or control over the land upon which the
laborers toiled is “probative of joint employment because without the land, the
worker might not have work, and because a business that owns or controls the
worksite will likely be able to prevent labor law violations, even if it delegates
hiring and supervisory responsibilities to labor contractors.” Martinez-Mendoza, 380
F.3d at 1214 (quoting Charles, 169 F.3d at 1333). Although Wyrick did not own the
pine fields upon which the laborers worked, Wyrick nevertheless was responsible
for the agreements with the landowners that permitted the laborers to enter the
fields and harvest the pine straw. D. & O. at 2-3; TR at 235. The Crew Chiefs did
not have relationships with the landowners and the laborers only had access to the
land through their association with Wyrick. Id. The ALJ found, as a practical
matter, that Wyrick controlled the land for purposes of the joint employment
analysis. D. & O. at 24. We agree.

18
Wyrick challenges the ALJ’s specific assertion that Wyrick possessed “to
some degree a possessory interest in the land.” Respondent’s Initial Brief (Resp. Br.)
at 25-26; D. & O. at 24. Wyrick asserts that it neither owned nor leased the land, as
required for a “possessory interest.” Although Wyrick may be right that Wyrick’s
agreements with landowners did not confer a technical and legal possessory
interest, the fact remains that the laborers were only on the land by virtue of
Wyrick’s agreements with the landowners. We agree with the ALJ’s principal
conclusion that the practical nature of the relationship is clear, regardless of the
technical legal status between Wyrick and the landowners. The laborers’ and Crew
Chiefs’ ability to work the land was wholly dependent on, and derivate of, Wyrick’s
agreements with the landowners, thus giving Wyrick some level of control over the
land for purposes of the laborers and work at issue in this action. See Perez, 2017
WL 772147, at *9.
G. Responsibilities Commonly Performed by Employers
“[W]orkers who use the services, materials or functions [provided by a
putative employer] are in a very tangible way economically dependent on the entity
performing these functions.” Charles, 169 F.3d at 1333 n.15 (quoting Migrant and
Seasonal Workers Protection Act, 62 Fed. Reg. at 11,741-42). Examples of tasks
that are ordinarily performed by employers include: preparing or making payroll
records, preparing or issuing paychecks, paying FICA taxes, providing workers’
compensation insurance, providing field sanitation facilities, housing, or
transportation, and providing tools, equipment, or materials required for the job. 29
C.F.R. § 500.20(h)(5)(iv)(G); Martinez-Mendoza, 340 F.3d at 1214.
The ALJ regarded the fact that Wyrick provided the laborers with the tools
necessary for harvesting the pine straw (pitchforks, strings, balers, tractors, and
trailers) as an indicium of joint employment. D. & O. at 24. But, Wyrick engaged in
no other tasks typical of an employer with respect to the laborers. There is no
evidence that Wyrick managed payroll, issued paychecks, paid or deducted for
taxes, provided worker’s compensation insurance, provided housing or
transportation, or provided field sanitation facilities or water. Although Wyrick
provided tools and equipment, these facts alone provides minimum indicia of
employment or economic dependency in light of the many other tasks in which
Wyrick did not engage that would be typical of an employer. See Charles, 169 F.3d
at 1333; Perez, 2017 WL 772147, at *9.

19
H. The Factors Demonstrate the Laborers Were Not Economically Dependent
on Wyrick
Weighing the relevant factors, we find that Wyrick did not jointly employ the
laborers. Although the laborers provided unskilled work that was integral to
Wyrick’s business on land secured by Wyrick, Wyrick did not supervise or control
the laborers, set their working conditions or terms and conditions of employment,
hire or fire them, or set their pay rates. The evidence also suggests that the
workforce was largely transient and temporary and, therefore, not dependent on
Wyrick. And, other than providing the few tools that were necessary to do the work,
Wyrick assumed none of the other responsibilities typical of an employer. Wyrick
hired the Crew Chiefs to recruit, hire, supply, supervise, and pay the work force,
and remained primarily concerned only with the final product that was produced.
Weighing all of the factors qualitatively, we find that the laborers were not
economically dependent on Wyrick under these circumstances. Therefore, we
reverse the ALJ’s ruling that Wyrick jointly employed the laborers.
CONCLUSION
Because Wyrick did not employ the laborers, it was not required to provide
them with wage statements, maintain their employment records, provide or post
disclosures of employment conditions, or display MSPA posters in the work fields
pursuant to 29 U.S.C. § 1831(a)-(c) and 29 C.F.R. §§ 500.76(b), (d)(1), 500.80(a), (d),
as cited by WHD. We REVERSE the ALJ’s assessment of penalties with respect to
those violations.
Regarding the remaining violation, for utilizing the services of unregistered
FLCs in violation of 29 U.S.C. § 1842 and 29 C.F.R. § 500.71, we AFFIRM the
ALJ’s ruling that the laborers were engaged in agricultural employment, but
REMAND for further proceedings consistent with this Order on the issue of
whether the laborers were employed on a seasonal basis.
SO ORDERED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A7f3f0ddf68a10308. Public record. Not legal advice.