Amicus Curiae Brief — Signet Builders, Inc., Petitioner v. Jose Ageo Luna Vanegas

No. 22-869

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------SIGNET BUILDERS, INC.,

v.

Petitioner,

JOSE AGEO LUNA VANEGAS,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE AG INSTALLERS, INC.,

ALEWELT CONCRETE INC., ALTENBURG

CONSTRUCTION INC., BOADWINE FARMS, INC.,

DREW BRANDT CONSTRUCTION, INC., SUMMIT

HEARTLAND, LLC D/B/A HEARTLAND

BUILDERS CO., J N J CONSTRUCTION INC.,

KOHLNHOFER FARMS, INC., LIONHEART

CONSTRUCTION, LLC, LONGHORN CATTLE &

SWINE CONFINEMENT SYSTEMS, INC., R&R

CHRISTO CONSTRUCTION LLC, REICKS VIEW

FARMS, L.L.C., AND SPARTANS AGRICULTURAL

BUILDERS, INC. IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------NOWELL D. BERRETH

Counsel of Record

KRISTI BOSWELL

BRYAN W. LUTZ

FIONA O’CARROLL

DANIELLE K. GOLDSTEIN

ALSTON & BIRD LLP

1201 West Peachtree Street NW

Atlanta, Georgia 30309

Tel: 404-881-7000

nowell.berreth@alston.com

Counsel for Amici Curiae

April 10, 2023

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

Page

STATEMENT OF INTEREST .............................

1

SUMMARY OF ARGUMENT ..............................

6

ARGUMENT ........................................................

9

I.

On-farm construction of livestock confinement structures is a commonsense example of secondary agriculture under the

FLSA ..........................................................

9

A. On-farm construction of livestock confinement structures is performed “as

an incident to or in conjunction with”

farming ................................................ 10

B. On-farm construction of livestock confinement structures is dictated by

farming timetables and is otherwise

seasonal ............................................... 15

II.

The Seventh Circuit’s erroneous decision

could have far-reaching and damaging

consequences ............................................. 19

A. The Seventh Circuit’s decision could

subject agricultural construction companies to inappropriate overtime requirements ........................................... 21

B. The Seventh Circuit’s decision could

spawn litigation with needless and

costly discovery .................................... 22

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TABLE OF CONTENTS – Continued

Page

C. Because the Seventh Circuit’s decision

conflicts with the DOL’s longstanding

view of agricultural construction as

“agriculture,” it threatens the agricultural construction industry’s reliance

on the H-2A visa program ................... 23

CONCLUSION..................................................... 27

iii

TABLE OF AUTHORITIES

Page

CASES

Bayside Enters., Inc. v. NLRB,

429 U.S. 298 (1977) ...................................................9

Bills v. Cactus Family Farms, LLC,

5 F.4th 844 (8th Cir. 2021) ......................................14

Maneja v. Waialua Agric. Co.,

349 U.S. 254 (1955) ........................................... 11, 14

STATUTES

8 U.S.C. § 1101 ............................................................23

26 U.S.C. § 3121 ..........................................................23

29 U.S.C. § 203 .................................................. 7, 10, 18

29 U.S.C. § 213 ..............................................................9

REGULATIONS

29 C.F.R. § 780.136 .....................................................10

29 C.F.R. § 780.144 .....................................................10

OTHER AUTHORITIES

81 Cong. Rec. 7652 (1937) ...........................................18

Cash Receipts by Commodity State Ranking,

Econ. Rsch. Serv. U.S. Dep’t of Agric. (last

visited Feb. 6, 2022) ................................................21

iv

TABLE OF AUTHORITIES—Continued

Page

David J. Bier, H-2A Visas for Agriculture: The

Complex Process for Farmers to Hire Agricultural Guest Workers (Mar. 10, 2020) ..................19

NPR, Millions of Pigs Will Be Euthanized As

Pandemic Cripples Meatpacking Plants (May

14, 2020) ..................................................................16

Skyler Simnitt & Marcelo Castillo, Use of H-2A

Guest Farm Worker Program More Than

Triples in Past Decade, Econ. Rsch. Serv. U.S.

Dep’t of Agric. (Sept. 7, 2021)..................................20

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STATEMENT OF INTEREST1

The barn raising tradition of centuries past has

given way to specialized construction by companies

that farmers hire to build large, modern barns and

other livestock confinement structures on farms. This

case is about the necessary role that agricultural construction plays in “the agricultural enterprise” as it

exists today.

Amici curiae are (1) companies that specialize in

the construction, installation, and repair of modern

hog and cattle barns, chicken houses, and other livestock confinement structures on farms; and (2) farmers

who hire them. The Department of Labor (“DOL”) has

long treated on-farm agricultural construction as

“agriculture” under the Fair Labor Standards Act

(“FLSA”) and the related H-2A statute that governs

the guestworker visa program on which all amici rely.

Starting with the farmers, Kohlnhofer Farms

is a family-owned 5,500-head hog farm in Goodhue,

Minnesota (a town of approximately 1,000 people). It

depends on agricultural construction companies to

supply the labor, expertise, and skills required to expand the farm’s operations and stay competitive. For

Pursuant to Supreme Court Rule 37.6, amici curiae state

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amici curiae, made

any monetary contribution toward the preparation or submission

of this brief. Pursuant to Supreme Court Rule 37.2, amici curiae

state that counsel of record for all parties received timely notice

of their intention to file this amicus curiae brief 10 days prior to

the deadline.

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example, in 2021, it hired an agricultural construction

company to construct a new hog barn that would comply with the animal welfare standards of California’s

Proposition 12. Kohlnhofer Farms could never have

constructed this state-of-the-art building on its own,

with the help of neighbors, or even with the help of a

“typical” residential or commercial construction company unfamiliar with the regulations and requirements unique to the agricultural industry. But it

needed a Proposition 12 facility to meet the evolving

requirements of the pork packers to which it supplies

hogs. In the words of one Kohlnhofer family member:

“If you don’t grow, you don’t survive.”

Boadwine Farms in Baltic, South Dakota, is a

fourth-generation family farm originally homesteaded

in 1874. An innovative dairy, Boadwine received the

2020 national Beef Quality Assurance Farmers Assuring Responsible Management Dairy Award recognizing its commitment to excellence in cow care, and it

was recently awarded a 2022 U.S. Dairy Sustainability

Award for its sustainable farming practices. Boadwine

has grown in terms of its herd size (from 40 milking

cows in the 1980s to 5,000 Holstein dairy cows today)

and its facilities. Today, Boadwine’s cows are housed in

barns equipped with ventilation, sprinkler systems,

and lighting at udder level in the milking parlor.

Reicks View Farms is a family farm in Lawler,

Iowa, founded in 1979. Founders Dale and Laura

Reicks work alongside their two children to farm

corn and raise hogs. The Reicks family also owns

an agricultural construction business called Jerico

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Construction, which builds hog barns. Jerico provides

construction services that support the smaller hog

farms that work in conjunction with Reicks View

Farms to raise hogs. With only six employees, Jerico

subcontracts to other agricultural construction companies certain specialized aspects of the work, including

concrete, heat recovery, ventilation, and filtration.

Owner and CEO Dale Reicks explained, “We can’t do

that skilled work locally, so we hire it out.”

Turning to the amici who specialize in on-farm agricultural construction work, each of them works hand

in hand with the farmers who hire them. They have

spent decades developing specialized skills for working

on farms and meeting the demanding timelines that

farmers—and their animals’ life cycles—impose.

First, in the poultry and egg industry, Ag Installers, based in Sugar Land, Texas, works with

cage-free egg farms to install the complex aviary

equipment that egg-free systems require, complete

with mesh flooring, ramps, feed troughs, water lines,

manure belts, fans, inlets, heaters, and other ventilation components—all equipment that farmers simply

cannot effectively install themselves. Ag Installers

prides itself on its ability to “take the stress away from

the farmer.” The company has completed jobs on farms

across the country.

Lionheart Construction, based in Royston,

Georgia, specializes in poultry house construction, primarily serving Georgia and South Carolina. Lionheart’s work is driven by “bird dates”: when the pullets

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(young hens) are ready, when the eggs are laid, when

the broilers are ready to go out. Lionheart draws on the

farming background of its owner Julia Lunn—a child

of southern Indiana farm country—and tailors its construction projects to farmers’ needs.

In the hog and cattle farming industries, Altenburg Construction specializes in replacing hog slats

and cattle slats, i.e., the flooring that animals stand

on that allows manure to drop to a level below. Andy

Altenburg started the business in 1994 in his garage

in Lewisville, Minnesota (pop. 115)—a struggling town

so small that it now has no grocery store, and “even the

liquor store is failing.” But Altenburg Construction has

survived. Today, it remains a family business and travels throughout the Midwest, responding to emergency

calls for repairs and working with farmers on strategic

planning for the future by identifying barns that will

need repair. The equipment that Altenburg uses in

working on concrete, metal, and plastic flooring systems in barns is highly specialized and is built to specifications for animal safety and manure removal.

Other amici also build on-farm structures for

hogs, cattle, and chickens. R&R Christo Construction, based in Fremont, Nebraska, installs agriculture

equipment—manure drives, feeders, waterers, ventilation, and the like—on dairy, hog, and poultry farms in

Indiana, Nebraska, Iowa, and elsewhere. Spartans

Agricultural Builders, based in Rockford, Illinois,

builds hog and cattle barns and installs equipment

on dairy, hog, and cattle farms. It recently began

work on a large construction project featuring an

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innovative barn that offers a more energy-efficient and

biosecure environment for hogs. In Pittsfield, Illinois,

Longhorn Cattle & Swine Confinement Systems

provides a wide range of services on farms, from concrete pouring to equipment installation to site planning to framing. It was founded by a farm owner over

forty years ago.

Summit Heartland LLC d/b/a Heartland

Builders Co. (“Heartland Builders”) specializes in

the erection of swine production facilities, including

finishing barns, farrowing barns, and nurseries. Established in 1988 and based in Columbus, Nebraska,

Heartland Builders works primarily in the Midwest

region, but also works in Missouri, Arkansas, Texas,

and Oklahoma.

Lastly, some amici are experts in the specialized

concrete aspects of farm construction projects. A typical concrete project for these companies involves establishing footings and foundations around the perimeter

of a barn and laying slotted concrete inside the barn

that is specially designed to allow for manure removal

to a pit below the flooring (work that often requires

standing in manure pits in waders). Alewelt Concrete is a concrete subcontractor based in Alden, Iowa,

that has worked on farms since 1997. It has helped

over 3,500 farmers in the last decade alone. Throughout the Midwest, it works to provide concrete construction for pork facilities, dairy and cattle barns, and cagefree egg facilities. South Dakota-based J N J Construction specializes in pouring concrete on hog farms

and in confinement barns for finishing cattle, working

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in Iowa, Minnesota, Nebraska, North Dakota, and

South Dakota. Drew Brandt Construction, based in

Ackley, Iowa, exclusively pours concrete for egg laying

facilities in Iowa, Nebraska, and Missouri.

Amici have a direct and substantial interest in

the statutory interpretation question in this case.

The DOL has long treated their work as “agriculture”

within the broad definition of the FLSA, such that it is

exempt from the FLSA’s overtime requirements. Overtime requirements would strain amici given the tight

cashflows of farmers (with net farm income forecast

only to decrease), the extra costs associated with hiring

more H-2A workers, and the reality that the construction of livestock confinement structures requires

working long hours for limited periods to meet the constraints of animal life cycles and weather patterns.

And overtime aside, the prospect of litigating the “agriculture” classification over and over—with needless,

lengthy, and expensive discovery—also looms. More

broadly still, the classification at issue here has implications not only for overtime pay but also for the H-2A

visa program—an essential source of labor for the agricultural construction industry.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Workers who build specialized agricultural structures and equipment, on farms and at the direction

of farmers, have been uniformly categorized for decades as agricultural workers exempt from overtime

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requirements and eligible for the H-2A visa program.

As Signet’s Petition notes, when an agricultural construction company like Signet applies to the DOL for

an agricultural guestworker visa, the application is

“open and notorious” about the nature of the work and

the fact that no overtime will be paid. And these applications have been routinely approved by the DOL for a

long time.

The Seventh Circuit’s decision risks disrupting

longstanding DOL practice and the agricultural economy that has come to depend on it. The DOL’s proper

classification of agricultural construction as “agriculture” is critical to agricultural construction companies

and to the farmers who need modern structures for

housing livestock and poultry, but who cannot complete that specialized work themselves.

Under the FLSA, “agriculture” includes not only

“primary” agriculture such as “the raising of livestock”

but also “secondary” agriculture. Secondary agriculture—the category at issue here—is defined as “any

practices . . . performed . . . on a farm as an incident to

or in conjunction with [primary] farming operations.”

29 U.S.C. § 203(f ).

The on-farm construction practices of amici illustrate what it means to work “as an incident to or in

conjunction with” farmers. Amici work alongside farmers to build the environments in which cows, pigs, and

chickens live. They navigate agriculture-specific building codes and regulations to create fully integrated

structures with flooring, ramps, feeders, waterers,

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manure drives, fans, inlets, and climate control features that keep the animals alive and well. Their

work is intertwined with the rhythms and seasons of

farming. In the hog industry, for example, construction

is dictated by the hogs’ life cycle. Companies that build

hog barns, like Heartland Builders, know that the

gestation phase lasts 3 months, 3 weeks, and 3 days

because that cycle dictates how long on-farm construction and maintenance projects can take. In short, onfarm construction is a quintessential example of secondary agriculture.

By construing the FLSA’s definition of “agriculture” narrowly (instead of fairly), and by focusing on

the employer’s business (instead of the practice at issue), the Seventh Circuit erred. If the Seventh Circuit’s

decision were left undisturbed, agricultural construction companies could be subject to inappropriate overtime requirements and needless, costly discovery that

they often cannot afford.

Further, the Seventh Circuit’s erroneous decision

could also have ramifications for the H-2A visa program’s classification of on-farm construction. Farmers

and agricultural construction companies rely on the

H-2A visa program to provide crucial labor that is in

short supply. The H-2A visa program is limited to “agricultural labor or services,” and its definition of “agricultural” is tied to the FLSA definition of “agriculture.”

As a result, the Seventh Circuit’s decision could ultimately jeopardize the agricultural construction industry’s access to the H-2A workforce upon which it relies.

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This could, in turn, have ripple effects for farmers and

food supply chains.

---------------------------------♦---------------------------------

ARGUMENT

The work of the agricultural construction amici is

varied and specialized, but all of this work is properly

classified as secondary agriculture. As the district

court correctly held, respondent pled himself out of

court by admitting that his work consists of “building

livestock confinement structures” “on farms.” The Seventh Circuit’s contrary holding is wrong and may have

far-reaching consequences if left undisturbed.

I.

On-farm construction of livestock confinement structures is a commonsense example of secondary agriculture under the

FLSA.

The Seventh Circuit’s opinion departs from the

longstanding, and commonsense, classification of onfarm agricultural construction as incidental to primary agriculture.

The FLSA categorically exempts from overtime

requirements “any employee employed in agriculture.”

29 U.S.C. § 213(b)(12). It defines “agriculture” broadly,

“in both a primary and a secondary sense.” Bayside

Enters., Inc. v. NLRB, 429 U.S. 298, 300 (1977). The

primary sense “includes farming in all its branches . . .

includ[ing] the cultivation and tillage of the soil,

dairying, . . . [and] the raising of livestock, bees,

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fur-bearing animals, or poultry.” 29 U.S.C. § 203(f ). The

secondary sense includes “any practices . . . performed

. . . on a farm as an incident to or in conjunction with

such farming operations.” Id. Interpretive regulations

provide some examples of secondary agriculture, including—as relevant here—the “erection of silos and

granaries” when performed on a farm by independent

contractors. 29 C.F.R. § 780.136.

Although the line between practices that are and

are not “incident to or in conjunction with” farming

may not be “susceptible of precise definition” (29 C.F.R.

§ 780.144), the construction, installation, and repair of

livestock barns, chicken houses, and other essential infrastructure on farms is not a borderline case. Rather,

it falls squarely—intuitively—within secondary agriculture.

A. On-farm construction of livestock confinement structures is performed “as

an incident to or in conjunction with”

farming.

Long ago, an American farmer in need of a new

barn might gather friends and neighbors and organize

a barn raising. A typical farm family could not supply

all the needed labor on its own, so a communal barn

raising was how the job got done.

No more. Today, the sophisticated construction of

large, modern barns bears little resemblance to the

barn raising of days past. It requires the equipment,

knowledge, and skill of specialized companies. It

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requires separation between different farms under

biosecurity protocols that prevent infectious disease

among livestock. And it produces large livestock confinement structures—complete with climate control,

mechanized equipment, and other features designed

for animal welfare—that are a far cry from the simple

wooden barns of days past. As farmers adapt to an

evolving regulatory landscape and increasing consumer demand for humanely raised meat products,

they increasingly need specialized agricultural construction companies to remain competitive.

Despite this evolution, on-farm agricultural construction is secondary agriculture, no less than its

historical precursors. As this Court has explained: “If

it is agriculture, albeit industrialized and involving

highly specialized mechanical tasks, we must hold it

to be within the agriculture exemption.” Maneja v.

Waialua Agric. Co., 349 U.S. 254, 265 (1955).

Take Kohlnhofer Farms, for example. In the fall of

2021, it hired an agricultural construction company to

come to its 5,500-head hog farm and build a new barn

that would be compliant with Proposition 12, a California law that regulates the treatment of animals confined on farms, with specific standards including for

freedom of movement and minimum floor space.

Kohlnhofer Farms did not have the manpower, equipment, or expertise to take on the project on its own, or

it would have done so. Instead, it sought out “people

who specialize in hog building” to get the job done. Its

new Proposition 12 barn houses about 1,500 hogs—

and allows Kohlnhofer Farms to meet the current

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consumer demand for meat production that satisfies

animal welfare standards.

In recent decades, to stay competitive and meet

growing demand, many farmers have sought economies of scale through larger and larger farming operations. The General Manager for Heartland Builders,

Brian Palmer, has experienced this trend firsthand. In

his experience, 1,200-head hog farms have given way

to 6,000-head hog farms (a common size now), and

Heartland is currently working on a 12,000-head hog

farm. Large barns on a farm of this scale may stretch

to 200 feet wide. Building a barn like that is no easy

feat, and hog breeding cycles leave little room for error

or delay. It requires large cranes and other specialized

equipment and workers who “know exactly what they

are doing.” Some of Heartland Builders’ customers are

farmers who used to construct their own smaller livestock buildings and are amazed at the large, modern

structures that Heartland Builders can construct in a

fraction of the time.

Longhorn Cattle & Swine Confinements has had

similar experiences with its farmer customers. The

Illinois-based company builds swine and cattle confinement systems and any other structures that a

farmer may need, such as tractor sheds and composters. A few weeks ago, Longhorn got a call from one

farmer who had been trying to install new gates on his

hog barn, without success: “We got animals coming,

and me and the boys have been at this for a couple of

days. This is way harder than what I thought it would

be.” In the experience of Longhorn’s Jonathon Ruzich,

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farmers often try to save money by installing equipment or other structures themselves—like they could

with less sophisticated structures in days past—but

end up calling Longhorn when they realize they do not

have the skill or time to complete the project themselves.

In the cage-free egg industry, R&R Christo Construction and Ag Installers work in parallel with

farmers to install aviary equipment for cage-free egg

facilities nationwide. Demand for cage-free eggs has

soared, and it requires buildings adapted for the purpose. Specialized equipment, which includes manure

drives, feeders, waterers, and ventilation, creates the

environment in which the chickens live. The knowledge

required to install it is “incredibly niche.” The CEO of

Ag Installers explained that it can take years to become skilled at the job. Farmers today need sophisticated livestock barns and chicken houses, and they

need a specialized agricultural construction industry

to build those structures.

As part of operating in the farm context, agricultural construction companies—just like the farmers

who hire them—are subject to farm-specific requirements. As R&R Christo Construction puts it: “Everything we do is for the farmers. Everything that affects

the farmer affects us by default.” That includes biosecurity protocols. Biosecurity protocols—that is, practices that lower the risk of infectious disease among

livestock and poultry—apply to all on-farm workers,

including agricultural construction crews. For example, R&R Christo’s crews, which can range from 6 to 60

14

workers, are required to “shower in” and “shower out”

of a site and must have a three- to five-day gap between

their work on different farms. Heartland Builders,

Drew Brandt Construction, J N J Construction, and

Spartans Agricultural Builders follow similar rules

and train their crews on biosecurity protocols. Like

farmers, agricultural construction companies may be

affected by a disease outbreak among the animals on a

farm. Just a few months ago, Altenburg Construction

had to postpone a job for seven months because of a

disease outbreak at a farm.

Agricultural construction companies may offer

other forms of specialized training as well. For example, Altenburg requires its workers to complete two

weeks of safety training before a job, including training

on confined space hazards and various gases that prepares workers for situations when they need to sift

through pig or cow manure to address a problem.

As these examples illustrate, the on-farm construction, installation, and repair of livestock barns

and chicken houses is a necessary and integral part of

“the agricultural enterprise” in America today. Maneja,

349 U.S. at 262. The specialized structures that amici

take pride in serve quintessentially agricultural functions and are vital to the welfare of farmers’ animals.

See, e.g., Bills v. Cactus Family Farms, LLC, 5 F.4th

844, 847 (8th Cir. 2021) (pig loading assessments

were “incidental” to pig-raising operations because

they “contributed to the welfare of the pigs being

loaded” onto trucks). This on-farm construction activity is secondary agriculture under the FLSA. Id.

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B. On-farm construction of livestock confinement structures is dictated by

farming timetables and is otherwise

seasonal.

The seasonal, animal-centered rhythms of agriculture extend to agricultural construction as well. Because of immovable deadlines set by animal life cycles,

on-farm construction projects often need to be completed quickly, and it is not uncommon for a project to

involve an intensive burst of labor in a relatively short

period of months or even weeks. Weather patterns matter, too. In winter, outdoor construction can be difficult

or unsafe, so winter is an “off season” for many agricultural construction companies.

Agricultural construction projects are driven by

agricultural timetables. For example, “pig dates”—that

is, moments of transition in hog life cycles—drive

the strictly scheduled projects of Heartland Builders

and Altenburg Construction, just as they drive the

farmers they work for. Heartland constructs three

types of barns corresponding to the phases of raising

hogs: (1) gilt development units, which house nursery

pigs starting at 21 days old; (2) breeding gestation

barns, where the breeding pigs reside for their gestation phase, lasting 3 months, 3 weeks, and 3 days; and

(3) farrowing barns, where piglets are born. The cycle

of hogs through these barns is known as the “turn of

pigs.” For Heartland, it is typical for the first two barns

to be stocked with pigs while Heartland is working to

complete the third barn. Because the farrowing barn

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will soon have to house the pigs coming from the gestation barn, there can be no delay in construction.

Disruption or delays in the “turn of pigs” can be

disastrous. Indeed, pork producers have had to euthanize entire herds when they could not properly turn

their pigs. For example, millions of pigs had to be euthanized when the COVID-19 pandemic devastated

the country’s capacity for processing hogs into pork.

See NPR, Millions of Pigs Will Be Euthanized As Pandemic Cripples Meatpacking Plants (May 14, 2020)

(https://www.npr.org/2020/05/14/855662494/millions-ofpigs-will-be-euthanized-as-pandemic-cripples-meatpackingplants). There is no flexibility in the production cycle.

Accordingly, Heartland Builders’ projects are typically

completed as quickly as possible, with 12-hour workdays during the workweek.

Similarly, Altenburg Construction serves pork producers by ramping up quickly and reliably on schedule,

so as not to disrupt the finely tuned sequence of pork

production. Altenburg specializes in replacing hog

slats, which is the flooring that animals stand on that

allows manure to drop to a level below. Sometimes—

especially when called out for “emergency work”—the

company has a matter of days or even a single day in

which to clean and perform repairs between a group of

pigs leaving and the next group coming in.

On poultry farms, “bird dates” drive the schedule

of any on-farm construction project. In the egg sector,

every two years, chickens are rotated from a pullet

barn (for young hens) to a layering barn (for birds that

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lay eggs). In the broiler context, an integrator delivers chicks to a farm on a specified date. Once those

chicks have grown, they are transported off the farm

for slaughter, and there is a short window of time—

usually only two to three weeks—before the next group

of chicks arrives. If the chicken house is in need of any

construction work, repair, or maintenance, it has to be

done in that window. Poultry house construction companies like Lionheart Construction work to these inflexible deadlines.

Like farming, on-farm construction work follows

the seasons. December to February is the “off season”

in many parts of the country, when agricultural construction companies typically go dormant because it is

simply too cold to work on farms or to move animals

safely between locations. In residential or commercial

construction, companies can erect the shell of buildings

in the fall, then enclose and heat the structure to complete interior construction during the winter. In the

specialized field of agricultural construction, that is often not an option. Where agricultural equipment is

built into the structure in an integral way, the entire

project may need to be completed while exposed to the

elements before it is enclosed and heated as a final

step.

Consider a typical poultry construction project by

R&R Christo Construction. The inside of the poultry

house is built first, and, due to the nature and size of

the equipment, the roof (and the ability to heat the

structure) comes last. Thus, as a principal of R&R

Christo explained, “if it is negative ten degrees

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outside, it is a balmy negative seven degrees inside.”

Unlike residential or commercial construction jobs,

R&R Christo’s construction jobs—unprotected by exterior walls, roof, or insulation—are paused in the winter

months. Longhorn’s cattle barns are similarly open to

the elements during construction, such that Longhorn’s crews cannot work in wintery conditions. Even

in the Southeastern States where Lionheart works,

chicken house construction slows in the coldest winter

months when Lionheart can’t pour concrete due to the

low temperatures.

In sum, agricultural construction projects are

wholly dictated by farming timetables and are dependent on weather conditions, requiring long hours for

bursts of time to meet absolute deadlines dictated by

animal life cycles and seasonal downcycles. This reality makes the standard FLSA model inapposite. See 81

Cong. Rec. 7652 (1937) (statement of Sen. Black).

***

Under the FLSA’s definition of secondary agriculture, what matters is whether the “practice[ ]” is “performed” “on a farm as an incident to or in conjunction

with [primary] farming operations.” 29 U.S.C. § 203(f ).

The Seventh Circuit strayed from the plain language

of the statute. Under the proper test, workers who

build livestock confinement structures on farms fall

squarely within the FLSA’s definition of secondary agriculture. They stand in farmers’ shoes to complete

necessary projects that farmers cannot complete themselves.

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II.

The Seventh Circuit’s erroneous decision

could have far-reaching and damaging

consequences.

The Seventh Circuit’s decision threatens to disrupt the productive agricultural system made up of

farmers, agricultural construction companies, and the

H-2A guestworkers who are essential to completing

on-farm construction projects. Agricultural construction companies that have come to rely on the DOL’s

longstanding treatment of their work as “agriculture”—a regulatory regime that should not be brushed

aside lightly—are in the crosshairs in this litigation.

Given the rural, seasonal, and time-sensitive nature of the work, agricultural construction companies

including amici rely heavily on H-2A agricultural

guestworkers. The H-2A visa program comes with administrative complexity and substantial costs, including visa filing fees, housing, transportation, and more.

In addition, an employer of H-2A workers has wage requirements for each state as determined by the Adverse Effect Wage Rate, which is typically higher than

the minimum wage. See David J. Bier, H‑2A Visas for

Agriculture: The Complex Process for Farmers to Hire

Agricultural Guest Workers (Mar. 10, 2020) (https://

www.cato.org/publications/immigration-research-policybrief/h-2a-visas-agriculture-complex-process-farmershire#h-2a-program-rules) (noting that 2020 AEWR

was higher than every state’s minimum wage by average of 57 percent).

20

Notwithstanding the cost and complexity of the

H-2A visa program, the past decade has witnessed an

exponential increase in the number of H-2A workers

arriving each year due, in part, to the incredibly tight

labor market and domestic workers’ general unwillingness to engage in seasonal agricultural work. See, e.g.,

Skyler Simnitt & Marcelo Castillo, Use of H-2A Guest

Farm Worker Program More Than Triples in Past

Decade, Econ. Rsch. Serv. U.S. Dep’t of Agric. (Sept. 7,

2021) (https://www.ers.usda.gov/amber-waves/2021/

september/use-of-h-2a-guest-farm-worker-programmore-than-triples-in-past-decade/). That trend is borne

out by the agricultural construction industry, which

has come to depend on H-2A guestworkers. The H-2A

program imposes administrative burdens—and

doesn’t leave flexibility for ad hoc additions to the

workforce—but it fills a gap that simply cannot be

filled with domestic labor. The Seventh Circuit’s

decision has injected needless uncertainty into the

agricultural construction industry’s eligibility for

the H-2A program.

This is a decision that may be keenly felt in the

States within the Seventh Circuit. Illinois, Indiana,

and Wisconsin are some of the most important agriculture States in the country:

•

Wisconsin ranks #2 in dairy

•

Indiana ranks # 3 in chicken eggs

•

Illinois ranks #4, Indiana #5, and Wisconsin

#16 in hogs

21

•

Illinois, Indiana and Wisconsin rank in the

top 25 for farm chickens

•

Illinois, Indiana and Wisconsin all rank in the

top 10 for corn

Cash Receipts by Commodity State Ranking, Econ.

Rsch. Serv. U.S. Dep’t of Agric.(https://data.ers.usda.

gov/reports.aspx?ID=17844#P9e06edba686446a8bcc1

710090e4ebbf_10_251iT0R0x132) (last updated Feb. 7,

2023). Accordingly, disruption of the agricultural construction industry in those States may have far-reaching effects for the nation’s food supply. The potential

impacts of the Seventh Circuit’s decision underscore

the need for review by this Court.

A. The Seventh Circuit’s decision could

subject agricultural construction companies to inappropriate overtime requirements.

The most immediate potential impact relates to

overtime pay. Because on-farm construction of livestock barns and poultry houses has long been classified

as “agriculture” under the FLSA, this work has been

exempt from the FLSA’s overtime requirements (and

eligible for the H-2A visa program, as discussed below).

The prospect of potentially having to pay overtime—on

top of the extra costs associated with the H-2A visa

program itself—is daunting to agricultural construction companies and farmers like amici. Given the demanding seasonal schedules of on-farm construction

projects, long workdays cannot be avoided. For that

22

very reason, the FLSA’s overtime requirements were

never intended to apply to agriculture.

Agricultural construction companies would likely

have to make tough business decisions if faced with

overtime requirements in certain jurisdictions. Extending the time it takes to complete a project is not

an option. Additional workers are hard to come by, and

hiring additional H-2A workers adds costs far above

overtime pay due to the H-2A-specific costs discussed

above. R&R Christo Construction estimated that it

would simply be forced to abandon States that require

overtime pay. And in the words of Altenburg Construction, “paying overtime would devastate us.” This reduction in the availability of agricultural construction

services could result in disruption for farmers and supply chains, negative impacts for animals, and more

food inflation for customers.

B. The Seventh Circuit’s decision could

spawn litigation with needless and

costly discovery.

The Seventh Circuit did not purport to classify agricultural construction as exempt or not exempt from

the FLSA’s overtime requirements. Instead, it took issue with the district court’s categorical determination

based on the pleadings that the on-farm construction

of livestock confinement structures is secondary agriculture. The Seventh Circuit prescribed a “totalityof-the-circumstances test” that improperly includes

consideration of whether the employer’s construction

23

business “amounts to an independent business.” That

test cannot be squared with the plain language of the

operative statute. It threatens to subject agricultural

construction companies to repeated litigation concerning the “agriculture” classification, with needless,

drawn-out, and costly discovery processes that they

often cannot afford.

C. Because the Seventh Circuit’s decision

conflicts with the DOL’s longstanding

view of agricultural construction as

“agriculture,” it threatens the agricultural construction industry’s reliance

on the H-2A visa program.

Although H-2A eligibility is not directly at issue in

this case, the Court should not overlook the potential

ramifications for the H-2A visa program.

The H-2A program is limited to “temporary or

seasonal” “agricultural labor or services.” 8 U.S.C.

§ 1101(a)(15)(H)(ii)(a). In other words, a job cannot be

done by an H-2A guestworker unless it is “agricultural.” The H-2A statute defines “agricultural labor or

services” to include (1) “agriculture” as defined by the

FLSA; (2) “agricultural labor” as defined in 8 U.S.C.

§ 3121(g); and (3) “the pressing of apples for cider on a

farm.” Id. Because the FLSA definition is materially

similar to or broader than the other two definitions

that inform the H-2A definition, the Seventh Circuit’s

opinion injects uncertainties into the H-2A visa program despite decades of consistent DOL guidance and

24

interpretation that agricultural construction workers

building on-farm structures are “agricultural.” As Signet’s Petition notes, the Seventh Circuit’s decision

“sets the FLSA on a collision course with the H-2A visa

program.” Petition at 27.

If the on-farm construction of livestock confinement structures is no longer deemed “agricultural”—

or if it becomes too costly to litigate the classification—

then would-be H-2A workers may no longer be admitted to do this work. That would be disastrous for the

agricultural construction industry and the farmers it

serves.

The H-2A visa program has served as a virtual

lifeline for amici. Amici have found it increasingly difficult to recruit domestic workers for the rural jobs that

farmers need done. These jobs are needed in remote

locations. It is manual labor that requires long journeys and time away from family—a hard lifestyle

that seems to appeal to fewer and fewer U.S. workers.

Multiple agricultural construction companies describe

H-2A workers as “a pillar” of their businesses. Without

it, these companies would be unable to staff construction projects, and the farming operations they support

would be directly affected.2

The H-2B program would not provide a solution to the problem because it has a cap and is already oversubscribed. Consequently, the number of workers currently hired under the H-2A

program could not be hired under the H-2B program in a timely

manner, if at all.

2

25

For example, Ag Installers has advertised hundreds of labor positions in various States yet struggles

to fill even a small number of openings with domestic

workers. It therefore relies on the H-2A program, currently working with about a hundred H-2A guestworkers per year, including many who have worked with Ag

Installers for seven or eight years and become skilled

in its “super niche specialty.” To lose its H-2A workforce would be a “disaster” for Ag Installers and the

farmers it supports. Similarly, R&R Christo struggles

to attract U.S. workers who can meet farmers’ firm

deadlines, which are designed to ensure appropriate

infrastructure for the care of hogs and chickens. R&R

Christo works with hundreds of H-2A workers each

year. These companies, along with other amici, might

have closed their doors by now but for the H-2A program.

The same goes for Spartans Agricultural Builders.

In Spartans’ experience, “as soon as local workers

come out on the farm and smell the job, they don’t

come back the next day.” Spartans hires over a hundred H-2A workers every year. It recently began work

on an innovative new 12,000-sow complex in South

Dakota. The development, which covers 55 acres, offers

a more energy-efficient and biosecure environment for

hogs. The project relies so heavily on H-2A workers

that it had to be paused when the workers’ visas

lapsed.

26

Amici prize the specialized experience and reliability of the H-2A crews they work with. For example,

Longhorn Cattle & Swine Confinements has been

working with the same H-2A guestworkers for over a

decade through its subcontractor Alewelt, resulting

in a knowledgeable and efficient construction process

that residential and commercial contractors could not

match—a process that “works like a well-greased machine.”

Longhorn’s well-greased machine would grind to a

halt without its H-2A workforce. The Seventh Circuit’s

narrow interpretation of “agriculture” under the FLSA

sets up a conflict with the DOL’s treatment of agricultural construction jobs as “agricultural.” If these jobs

were to become ineligible for the H-2A visa program as

a result of confusion created by the Seventh Circuit’s

opinion, that would impair the operations of the agricultural construction amici and their farmer customers. And it would undoubtedly have damaging ripple

effects for the food supply chains needed to feed a

growing population.

---------------------------------♦---------------------------------

27

CONCLUSION

For the foregoing reasons, the Court should grant

Signet’s petition for certiorari and reverse the decision

of the United States Court of Appeals for the Seventh

Circuit.

Respectfully submitted,

NOWELL D. BERRETH

Counsel of Record

KRISTI BOSWELL

BRYAN W. LUTZ

FIONA O’CARROLL

DANIELLE K. GOLDSTEIN

ALSTON & BIRD LLP

1201 West Peachtree Street NW

Atlanta, Georgia 30309

Tel: 404-881-7000

nowell.berreth@alston.com

Counsel for Amici Curiae