Petition — Givens v. Castillo
Supreme Court brief1983
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IN THE
SUPREME COURT OF THE UNITED STATES
TERM, 1983
ERCELL GIVENS, Petitioner
v.
PAULINA CASTILLO, ET AL., Respondents
Petition for Writ of Certiorari to
The United States Court of Appeals
for the Fifth Circuit
MOREHEAD, SHARP & TISDEL
P. O. Box 1600
Plainview, Texas 79072
Tom S. Milam
Cecil Kuhne
CRENSHAW, DUPREE & MILAM
P. O. Box 1499
Lubbock, Texas 79408
Attorneys for Petitioner
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~~ Fort Worth Bnef Printing Co., 610 South Jennings Avenue, Fort Worth, Texas 76104 Phone 817-332-4070
No.
IN THE
SUPREME COURT OF THE UNITED STATES
Term, 1983
ERCELL GIVENS, Petitioner,
v.
PAULINA CASTILLO, ET AL., Respondents
Petition for Writ of Certiorari to
The United States Court of Appeals
for the Fifth Circuit
TO THE HONORABLE SUPREME COURT
OF THE UNITED STATES:
NOW COMES Ercell Givens, Petitioner, and submits his
Petition for Writ of Certiorari and would respectfully show
the following:
QUESTIONS PRESENTED FOR REVIEW
1.
The Court of Appeals erred in holding that as a matter of
law Manuel Tonche was an employee of the Defendant and in
also holding that as a matter of law Manuel Tonche was a farm
labor contractor under 7 U.S.C. Sec. 2042(b). Such holdings
are inconsistent and conflicting and Manuel Tonche could not
ii
have been both an employee of the Defendant and a farm labor
contractor at the same time.
2.
The Court of Appeals erred in disregarding the jury find-
ings that Manuel Tonche was an independent contractor and
the plaintiffs were not employees of Defendant and in holding
that the employees hired by Manuel Tonche to hoe weeds on
the farm of Defendants were employees of Defendant under
the FLSA, as a matter of law, there being ample and abun-
dant evidence to support the jury findings that Manuel Tonche
was an independent contractor and the Plaintiffs were not
employees of the Defendant.
3.
The Court of Appeals erred in disregarding the jury finding
that the failure of Defendant to pay the minimum wage
required by law to Plaintiffs in 1977 and 1978 was not willful
and in holding that there was a willful violation of the mini-
mum wage provisions of the FLSA by Defendant as a matter
of law, there being ample and abundant evidence to support
the jury findings that the failure of Defendant to pay the min-
imum wage required by law to Plaintiffs in 1977 and 1978 was
not willful.
4.
The Court of Appeals erred in disregarding the jury finding
that Manuel Tonche was not a farm labor contractor and in
holding that Manuel Tonche was a farm labor contractor, as a
matter of law, there being ample and abundant evidence to
support the jury finding that Manuel Tonche was not a farm
labor contractor.
ili
5.
The Court of Appeals erred in disregarding the jury finding
that Defendant did not fail to obtain and maintain payroll rec-
ords of Plaintiffs furnished to him to hoe cotton in 1977 and
1978 and in holding that there was not only a violation of the
record keeping provisions of the FLCRA but also a willful vio-
lation of the record keeping provisions of the FLCRA by
Defendant, as a matter of law, there being ample and abun-
dant evidence to support the jury finding that Defendant did
not fail to obtain and maintain payroll records and there was
not a willful violation of the record keeping provisions of the
FLCRA.
6.
Alternatively, the Court of Appeals erred in refusing to
simply reverse and render judgment for Plaintiff for the sum
of $10,907.76 based upon the hours found by the jury to have
been worked by Plaintiffs in 1977 and 1978. (804.5 hours found
by the jury under Special Issue 4 times $2.20 equals $769.90
plus 3,448.25 hours found by the jury in Special Issue 5 times
$2.65 equaling $9,137.86).
LIST OF NAMES OF ALL PARTIES
The following listed parties have an interest in the outcome
of this case:
Petitioner:
Ercell Givens
Respondents:
Paulina Castillo
Francisca Contreras
Betty Lou Contreras
Mary Esmeralda
Contreras
Rodolfo Valentin Ramos
Refugia Gamez
Rosa Garcia
Linda Garcia
Oscar Garcia
Aida Garcia
Rosa Linda Pantoja
Pauline Pantoja
Margarita Rodriguez
Paula Piojas
Petra Soliz
Juanita Tonche
Johnny Tonche
Jessie Tonche
Edna Montejano
Manuel Tonche (Deceased)
Eva Arriola
Georgina Contreras
Mary Lee Contreras
Maria Elena Aguilar
Contreras
Florentino Ramos
Hilario Garcia
Sylvia Garcia
Ismael Garcia
Artemio Garcia
Manuel Pantoja
Margarita Pantoja
Pauline Sue Pantoja
Johnny Riojas
Sally Ruiz
Glanca Estella Valles
Elizabeth Tonche
Adam Tonche
Candelaria Tonche
Reymundo Arriola
Vv
TABLE OF CONTENTS
Page
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(1) Opinion of the United States Court of Appeals for the
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(2) Order on Petition for Rehearing dated June 16, 1983.... A-39
(3) Judgment of United States District Court dated
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TABLE OF AUTHORITIES
CASES
Alvarez v. Joan of Arc, Inc., 658 F.2d 1217 (7th Cir. 1981) ...
Atlantic and Gulf Stevedores v. Ellerman Lines, 369 U.S.
355, 7 L.Ed.2d 798 (2) (1962) reh den 369 U.S, 882,
FEE ccna bs nddatbartalienendsesaniesdvnainns
eee een eee
Bartels v. Birmingham, 332 U.S. 126, 91 L.Ed. 1947 (1947) ..
Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139
(5th Cir. 1971) cert den’d 409 U.S. 948..............
Dennis v. Denver & Rio Grande Western R. Co., 375
208, 11 L.Ed.2d 256 (2) (1968) .......ccccccscccsvcces
U.S.
Dowd v. Blackstone Cleaners, Inc., 206 F.Supp. 1276 (4)
RL a se damebinaniew's
Howard v. Executive Leasing Co., 348 F.Supp. 274
(E.D. Mo. 1972) aff'd 475 F.2d 1407 (8th Cir. 1973)
Mitchell v. Hertzke, 234 F.2d 183 (10th Cir. 1956) ....
Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748
EM SEER vckcvesosccnrscstaescistassvesscesss
Rutherford Food Corp. v. McComb, 331 U.S. 722, 91
PET Wuvuaunuasinpaiuceoresnsecenuceukhennehs ss
seen en ene
L.Ed.
Sims v. Parke Davis & Co., 334 F.Supp. 774, 783 (E.D.
Mich. 1971) aff'd 453 F.2d 1259 (6th Cir. 1971) cert.
ically cca kh pnceinwnocasabacanvessedenvenss
den'd
Tobin v. Cherry River Boom & Lumber Co., 102 F.Supp. 763
CER Es Fe Ee ice veer esisaedenrscencsctessnnss
United States v. Silk, 331 U.S. 704, 716, 91 L.Ed. 1757 (1947)
Wabash Radio Corp. v. Walling, 162 F.2d 391 (1) (6th
ete eerie usa alvin mia tikeaednapiess cake
Cir.
eee eee eee
Walling v. American Needlecrafts, 46 F.Supp. 16 (4, 5, 7)
EE oat suvandeuarVausapeebecvecteweacees
Walling v. Twyeffort, 158 F.2d 944 (3) (2nd Cir. 1947)
eee eee eee
Page
10
Vii
TABLE OF AUTHORITIES (Continued)
Page
Wirtz v. Kneece, 249 F.Supp. 564 (D.S.C. 1966) ...........0065 8
FEDERAL STATUTES
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PRES IED NS 61d Coun eve vdednsihescceteetensinetasteceeees ]
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a Pe i ME ab ad ca snetccassesansesctanpperesnciuaepes 2
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29 U.S.C. § 208(€) (1)... csssececverseecneessreeesusenseseneenses 2
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l
REFERENCE TO OFFICIAL REPORTS OF OPINION
OF COURTS BELOW
The opinion of the United States Court of Appeals for the
Fifth Circuit has not yet been reported in the Federal
Reporter (Second Series) but a copy of the Court's opinion is
contained in the Appendix to this Petition.
Also contained in the Appendix is a copy of the Judgment of
the District Court dated June 19, 1981 and a copy of the Order
of the District Court dated October 7, 1981 overruling Plain-
tiff’s Motion to Alter Judgment, for Judgment n.o.v. and for
Partial New Trial.
STATEMENT OF GROUNDS OF JURISDICTION
The judgment sought to be reviewed is that of the United
States Court of Appeals for the Fifth Circuit dated and
entered May 6, 1983 reversing and remanding the judgment of
the district court.
Ercell Givens, Petitioner here, filed a Petition for Rehear-
ing in the United States Court of Appeals for the Fifth Circuit
which was overruled by such Court on June 16, 1983.
Jurisdiction to review the judgment of the United States
Court of Appeals for the Fifth Circuit by Writ of Certiorari is
conferred upon this Court by the provisions of 28 U.S.C. Sec.
1254(1).
The Federal District Court had jurisdiction of this case
under 28 U.S.C. Sec. 1331.
STATUTORY PROVISIONS INVOLVED
This case involves claims by Plaintiffs under the minimum
wage provisions of the Fair Labor Standards Act and claims
under the Farm Labor Contractor Registration Act.
2
The provisions of such statutes primarily involved are noted
here and the text of such statutory provisions are set out ver-
batim in the Appendix attached to this Petition.
The provisions of the FLSA involved are 29 U.S.C. Sec.
203(d); Sec. 203(e)(1); Sec. 206(a); Sec. 211(c) and Sec.
255(a).
The provisions of the Farm Labor Contractor Registration
Act involved are 7 U.S.C. Sec. 2042(b) and (c); Sec. 2045(e),
and Sec. 2048.
STATEMENT OF THE CASE
The Federal District Court had jurisdiction of this case
under 28 U.S.C. Sec. 1331, Federal Question Jurisdiction.
This action was filed by Paulina Castillo, et al, alleging that
they had performed farm labor as “employees” of Defendant,
Ercell Givens during the 1977 and 1978 agricultural seasons.
This suit was filed on February 14, 1980. Plaintiffs sought
damages for Defendant’s alleged failure to pay minimum wage
in violation of the Fair Labor Standards Act (29 U.S.C. §201,
et seq.) (R. 1-3) (FLSA).
Plaintiff also claimed violation of the record keeping provi-
sions of the Farm Labor Contractor Registration Act
(FLCRA),.
Defendant denied the truth of the allegations of Plaintiffs’
Complaint and further alleged that the claims of Plaintiffs
herein were barred in whole or in part by the pertinent stat-
ute of limitations (R. 48-49).
The case was tried to a jury and submitted on special issues
in response to which the jury found:
(1) Plaintiffs were not engaged in the production of goods
for commerce.
(2) Plaintiffs were not employees of Defendant.
(3) The failure of Defendant to pay the minimum wage
required by law to Plaintiffs was not willful in the year 1977
and was not willful in the year 1978.
3
(4) The jury made findings with respect to each of the 26
listed Plaintiffs as to the number of hours or “none” that such
Plaintiffs worked hoeing Defendant’s cotton in 1977.
(5) The jury made findings with respect to each of the 32
listed Plaintiffs as to the number of hours or “none” that such
Plaintiffs worked hoeing Defendant’s cotton in 1978.
(6) Plaintiffs were not migrant workers.
(7) Manuel Tonche was not a farm labor contractor.
(8) Defendant did not fail to obtain and maintain payroll
records of the Plaintiffs furnished to him to hoe cotton in 1977
and 1978 which showed the listed information for such worker.
(9) Defendant’s failure to comply with the Farm Labor
Registration Act (if you have so found) was not intentional
(R. 316-326).
In its order accompanying the judgment the district court
stated that it did not appear that the jury’s finding to Special
Issue 1 relating to production of goods for commerce was sup-
ported by the evidence, but held that even if Plaintiffs prevail
on this issue there is sufficient evidence to support the jury’s
finding that Plaintiffs were not employees of Defendant and
this would preclude Plaintiffs’ recovery under the FLSA
(R. 398).
The district court also stated that it did not appear that the
evidence supported the jury’s answer to Special Issue 6
(refusing to find that Plaintiffs were migrant workers) but
stated that the evidence does support the answer to Special
Issue 7 (that Manuel Tonche was not a farm labor contractor
as defined by FLCRA) and such finding precluded Plaintiffs’
recovery under the FLCRA (R. 399).
Based upon the jury verdict the trial court rendered take
nothing judgment in favor of Defendant (R. 327).
The Court of Appeals disregarded all of the jury findings
favorable to Defendant and held as a matter of law that Man-
uel Tonche was not an independent contractor but was an
employee of the Defendant; that the Plaintiffs who were hired
1
by Manuel Tonche were employees of Defendant; that Defen-
dant in essence should have known that the FLSA was appli-
cable and willfully violated the FLSA; that Manuel Tonche
was a farm labor contractor under the FLCRA; that Defen-
dant failed to keep records required by the FLCRA and that
such failure was willful.
The circuit court also held that the district court improperly
instructed the jury with respect to burden of proof and set
aside the jury findings to Special Issues 4 and 5 with respect to
the number of hours that the various Plaintiffs worked hoeing
Defendant’s cotton in 1977 and 1978, if any, and remanded the
case to the district court for a retrial of such issues as to the
hours worked by Plaintiffs.
The parties will be primarily referred to herein by their des-
ignation in the trial court. Plaintiffs will sometimes be
referred to in the singular.
ARGUMENT
It is fundamental that the credibility of witnesses and
weight to be given to their testimony are matters within the
province of the jury, that findings of fact may not be set aside
by the appellate courts on the ground that the court itself sit-
ting as finder of fact would have reached a different result,
and the jury findings must be upheld if supported by substan-
tial evidence. Atlantic & Gulf Stevedores v. Ellerman Lines,
369 U.S. 355, 7 L.Ed.2d 798 (2) (1962) rehearing denied, 369
U.S. 882, 8 L.Ed.2d 284; Dennis v. Denver & Rio Grande
Western R. Co., 375 U.S. 208, 11 L.Ed.2d 256 (2) (1963).
We submit that in the case at bar there is not only substan-
tial evidence, but ample and abundant evidence to support the
jury's findings and there was no basis for the Court of Appeals’
action in disregarding the jury findings and holding that all
elements of Plaintiffs’ claim (with the exception of the number
5
of hours worked, which findings the Court of Appeals also dis-
regarded) were established by Plaintiffs as a matter of law.
In this connection, and before discussing the cases and evi-
dence supporting the jury findings, it should be noted that the
Court of Appeals’ “findings” with respect to the status of Man-
uel Tonche are in themselves totally inconsistent and
conflicting.
The Court of Appeals first held that as a matter of law Man-
uel Tonche was not an independent contractor but was only an
employee of the Defendant, Ercell Givens. The Court also
subsequently held that as a matter of law Manuel Tonche was
a farm labor contractor under 7 U.S.C. Sec. 2042(b).
Manuel Tonche cannot be a “contractor” and “not be a con-
tractor” at the same time. This inconsistency also highlights
the extent to which the Court of Appeals went in disregarding
the jury findings and all contrary evidence in order to conclude
that Plaintiffs had established all claims against Defendant, all
as a matter of law.
We would first refer the Court to the evidence supporting
the jury findings with respect to Plaintiffs’ claim under the
Fair Labor Standards 4-t and the “grounds” relied upon by
the Court of Appeals for disregarding such findings.
In order for the minimum wage provisions of the Fair Labor
Standards Act to apply, Defenda1t must of course be an
“employer” and Plaintiffs must be an “employee” under the
provisions of the Act. 29 U.S.C. Sec. 206(a).
Both the term “employer” and “employee” are broadly
defined in the Act. 26 U.S.C. Sec. 203(d) and Sec. 203(e)(1).
While common law principles with respect to determining
whether an employee or an independent contractor relation-
ship exists are not conclusive, they are relevant and material
to determination of such issues under the FLSA. Wabash
Radio Corp. v. Walling, 162 F.2d 391 (1) (6th Cir. 1947); Real
v. Driscoll Strawberry Associates, Inc., 603 F.2d 748 (2) (9th
Cir. 1979); Sims v. Parke Davis Co., 334 F.Supp. 774, 783
6
(E.D. Mich. 1971) affirmed 453 F.2d 1259 (6th Cir. 1971) cert.
denied 405 U.S. 978; Walling v. American Needlecrafts, 46
F.Supp. 16 (4, 5, 7) (W.D. Ky. 1942) reversed on other grounds
130 F.2d 60 (6th Cir. 1943).
In Real v. Driscoll Strawberry Associates, Inc., 603 F.2d
748 (9th Cir. 1979), supra, the court said (p.754):
“The courts have identified a number of factors which
may be useful in distinguishing employees from indepen-
dent contractors for purposes of social legislation such as
the F.L.S.A.”
The court then lists some six factors including the degree of
the alleged employer’s right to control the manner in which
the work is to be performed, the alleged employee’s opportu-
nity for profit or loss depending upon his managerial skill, the
alleged employee’s investment in equipment or materials or
his employment of helpers and the degree of permanence of
the work relationship.
The court noted that the list was not exhaustive but sum-
marized the factors which the Supreme Court deemed rele-
vant to this problem in Bartels v. Birmingham, 332 U.S. 126,
91 L.Ed. 1947 (1947); United States v. Silk, 331 U.S. 704, 716,
91 L.Ed. 1757 (1947) and Rutherford Food Corp. v. McComb,
331 U.S. 722, 91 L.Ed. 1772 (1947).
In the case at bar the undisputed evidence showed that
Plaintiff hired Mr. Tonche to have his cotton hoed as he had
done every year since about 1975 (Tr 169-172, 177, 178, 215).
Defendant’s only direction and control over the work was
that he showed Mr. Tonche the fields which he wanted hoed
and told Mr. Tonche that he wanted all weeds hoed other than
Johnson Grass and blue weeds (Tr 169-172, 177, 178, 190-191).
Defendant would go into the fields some two or three times a
week to see how the work was progressing and to see if Mr.
Tonche was doing a good job (Tr 186, 189, 175, 180).
7
It is undisputed that Mr. Tonche hired and fired all of the
hoers, furnist.d hoes and equipment to all of the hoers, fur-
nished transportation as was necessary to any of the hoers
desiring transportation, directed the time that the hoers
would come to work and leave and directed all of the details of
the performance of the work.
It is likewise undisputed that Defendant did not pay any of
the hoers; Defendant paid Mr. Tonche at the end of each week
based upon records and calculations kept by Mr. Tonche; Mr.
Tonche paid each of the hoers that he employed. Defendant
did not even know how much Mr. Tonche paid the people
whom Manuel Tonche employed (Tr 175, 180, 182, 195-196, 270-
273, 287, 330, 332, 334, 336, 337, 361-363, 367, 384-385, 388,
390, 411, 437-439, 474-478, 488-490, 499, 501, 508, 509-510,
527, 540, 559, 561, 580, 589, 600-601, 606, 609, 615, 629-630,
637, 638, 645, 660).
The Court of Appeals held that Manuel Tonche was only an
employee and not an independent contractor as a matter of
law on the grounds, in essence, that Defendant told Manuel
Tonche which fields were to be hoed, the worked performed by
the employees of Manuel Tonche was not skilled labor, and
that Manuel Tonche could not have been in business for him-
self since he had only a second grade education.
We submit that such holding is wholly without merit.
First, Defendant’s direction as to which fields were to be
hoed constituted only directions by Defendant of the job to be
performed and did not constitute directions as to details of the
performance of such job.
Secondly, the fact that skilled labor was not required con-
stitutes only one of numerous elements to be considered.
Thirdly, the fact that a person does not have a high level or
degree of formal education does not, as a matter of law, com-
pel the holding that “as a matter of economic fact” such person
cannot be in business for himself.
8
It is also undisputed that the time for hoeing cotton lasts
only a relatively short time and there is no requirement that
Manuel Tonche perform such work all year around in order to
qualify as an independent contractor.
It is also important to note that there is no evidence that
Manuel Tonche was in any way restricted to hiring employees
to hoe weeds on the fields of Defendant or that he could not
have contracted for the hoeing of weeds for any other farmer
in the area if he so desired.
As noted above, the Court of Appeals, in holding that Man-
uel Tonche was only an employee of Defendant, totally disre-
garded and ignored the undisputed evidence that Mr. Tonche
hired, fired and paid all employees, directed the hours of
work, details of performance of their work, furnished all
equipment and all transportation required, etc., which evi-
dence the jury was clearly entitled to consider in determining
that Plaintiffs were not employees of the Defendant (but were
employees of Manuel Tonche, an independent contractor).
There are numerous cases in which the evidence is not
nearly as strong and compeiling in support of the findings that
Plaintiffs were not employees of Defendant in which the
appellate courts have upheld such findings. The cases of
Mitchell v. Hertzke, 234 F.2d 183 (10th Cir. 1956) and Wirtz v.
Kneece, 249 F.Supp. 564 (D.S.C. 1966) involve closely analo-
gous fact situations.
See also Walling v. Twyeffort, 158 F.2d 944, 948 (3) (2nd Cir.
1947); Howard v. Executive Leasing Co., 343 F.Supp. 274
(E.D. Mo. 1972) affirmed 475 F.2d 1408 (8th Cir. 1973) and
Tobin v. Cherry River Boom & Lumber Co., 102 F.Supp. 763
(1) (S.D. W.Va. 1952).
The Court of Appeals further held that Defendant’s failure
to pay minimum wage to the employees of Manuel Tonche con-
stituted a willful violation of the FLSA by Defendant as a mat-
ter of law.
9
We submit that such holding is erroneous for several
reasons.
First, as already discussed above, there was abundant evi-
dence in this case that the Plaintiffs were not in fact employ-
ees of Defendant at all but were employees of Manuel Tonche,
with whom Plaintiff contracted in the belief that he was
retaining Manuel Tonche to hoe his fields as an independent
contractor.
Defendant testified that when contracting with Mr. Tonche
to have his fields hoed he suggested and offered to pay Mr.
Tonche by the acre but Mr. Tonche stated that he would rather
compute the time of his workers and be paid on this basis (Tr
195-196).
Also, as noted above, Defendant did not know the number
of people working for Mr. Tonche, the hours worked or what
Mr. Tonche was paying them. He simply paid Mr. Tonche on a
weekly basis based upon the amount computed by Mr. Tonche
from the records which Mr. Tonche kept: and Mr. Tonche paid
all of his workers himself.
Defendant specifically testified that he did not know that he
was under the minimum wage law in contracting with Mr.
Tonche for this work (Tr 215). See also Tr 276-277, 745-746,
748).
The Court of Appeals in its opinion recognized the test for
willful violation of the Act as stated in Coleman v. Jiffy June
Farms, Inc., 458 F.2d 1139 (Sth Cir. 1971) cert. denied 409
U.S. 948 as follows (p. 1142):
“Did the employer know that the F.L.S.A. was in the pic-
ture?” (emphasis ours).
In Doi d v. Blackstone Cleaners, Inc., 306 F.Supp. 1276 (4)
(N.D.Tex. 1969) the court stated (p. 1281):
“To be willful, the violation must be shown to be deliber-
ate, voluntary and intentional as distinguished from one
10
committed through inadvertance, accident, or ordinary
negligence.” (citing numerous authorities).
However, while purporting to affirm and follow the Cole-
man case the Court of Appeals has in fact greatly broadened
the standard from that requiring that the Defendant “know”
that the FLSA was in the picture to one in which the Defen-
dant “should have known” that the FLSA was in the picture.
It is undisputed, from Defendant’s own testimony, that he
did not “know” that the FLSA was in the picture and the
Court of Appeals has held in essence that Defendant was
guilty of a willful violation of the FLSA in this case because he
“should have known,” as a matter of law, that the Fair Labor
Standards Act was applicable and that Plaintiffs were his
employees and were under such Act.
The Court of Appeals also refers to the DOL investigation
and determination that Defendant owed back wages under the
FLSA. In this connection, Defendant specifically testified that
the first knowledge he had that there was any claim by the
government that the minimum wage law applied to the
employees of Manuel Tonche was on September 1, 1978 (Tr
744). This was after Defendant is alleged to have violated the
FLSA (in the summer of 1977 and 1978).
The Court of Appeals similarly applied a much broader def-
inition of intentional violation of the FLCRA than that recog-
nized or applied in any previous decisions including those cited
by the Court.
The Court of Appeals cites Alvarez v. Joan of Arc, Inc., 658
F.2d 1217 (7th Cir. 1981) for its holding that although the term
“intentional” (in 7 U.S.C. Sec. 2050a(b)) does not require a
specific intent to violate the Act, the term does mean “con-
scious or deliberate.”
There is no evidence of probative weight in this case that
either Defendant or Manuel Tonche “consciously or deliber-
ately” violated the provisions of the F.L.C.R.A. (and the
1]
undisputed evidence in fact establishes that Manuel Tonche
did maintain written records of the employees’ hours, etc.)
and certainly the evidence does not establish that either
Defendant or Manuel Tonche consciously or deliberately vio-
lated the provisions of the F.L.C.R.A. as a matter of law.
The Court of Appeals also held that the district court’s
instruction in effect improperly placed the burden of proof of
Special Issues 4 and 5 on the Plaintiffs rather than on
Defendant.
The Plaintiffs did not object to the district court’s charge
with respect to such instruction and we submit that such
instruction is not erroneous and did not mislead the jury into
believing that the burden of proof on Special Issues 4 and 5
was on the Plaintiff.
The instruction referred to by the Court of Appeals as erro-
neously placing the burden of proof was the following:
“It is the duty of the employer to keep and maintain accu-
rate records of the number of hours that an employee
works for said employer and it is not the duty of the
employee to keep such records.”
Such instruction clearly advises the jury that it is the
employer and not the employee who has the duty to keep rec-
ords of the number of hours worked and the jury was there-
fore in effect fully advised as to the burden of proof with
respect to Special Issues 4 and 5,
Petitioner further submits, in the alternative, that the
Court of Appeals clearly erred in setting aside the jury find-
ings as to the hours worked by various Plaintiffs in 1977 and
1978 (in response to Special Issues 4 and 5) and in remanding
the case for a retrial of such issues and that in te event this
Court does not reverse the judgment of the Court of Appeals
and affirm the judgment of the district court, this Court
should in any event reverse and render judgment for Plain-
tiffs for the amount of $10,907.76 in accordance with the jury
12
findings under Special Issues 4 and 5. In Special Issue 4
(inquiring as to 1977) the jury found a total of 804.5 hours
which, at $2.20 an hour equals $769.90. In response to Special
Issue 5 (inquiring as to 1978) the jury found a total of 3,448.25
hours, which at $2.65 an hour totals $9,137.86.
CONCLUSION
For the reasons and based upon the authorities above cited,
Petitioner submits the Court of Appeals for the Fifth Circuit
erroneously states the law with respect to the FLSA and
FLCRA and the Court erroneously reversed the judgment of
the district court based on the jury verdict.
There was ample evidence to support the jury findings for
Defendant and the Court of Appeals erred in setting aside and
disregarding such findings, and making contrary findings as a
matter of law.
The Court of Appeals also erred in holding, as a matter of
law, that Manuel Tonche was both an independent contractor
and an employee of Defendant, Givens, at the same time and
such findings are totally inconsistent and Manuel Tonche could
not be both an independent contractor and an employee at the
same time.
Furthermore, the Court of Appeals has in effect extended
the previous rule of willful violation of the Fair Labor Stan-
dards Act from one in which the employer is required to
“know” that the FLSA is in the picture from one in which the
employer is liable if he “should have known” that the FLSA
was in the picture.
Furthermore, the Court of Appeals has in effect ignored the
prior decisions that an intentional violation of the FLCRA
requires a “conscious or deliberate” violation and the evidence
is undisputed in the case at bar that there was no conscious or
deliberate violation.
13
WHEREFORE, Petitioner prays that this Court grant his
Petition for Certiorari and that upon full hearing this Court
enter judgment reversing the judgment of the United States
Court of Appeals for the Fifth Circuit and affirm the judgment
of the district court. Alternatively, Petitioner prays that the
Court reverse and render judgment for Plaintiffs for
$10,907.76.
Respectfully submitted,
MOREHEAD, SHARP & TISDEL
P.O. Box 1600
Plainview, Texas 79072
Tom S. Milam
Cecil Kuhne
CRENSHAW, DUPREE
& MILAM
P.O. Box 1499
Lubbock, Texas 79408
By Tom al: Hebem,
: Tom S. Milam
Texas Bar #14035000
ny Cece0 Hache
Cecil Kuhne
Texas Bar #11760000
Attorneys for Petitioner
14
CERTIFICATE OF SERVICE
This is to certify that three copies of the above and forego-
ing Petition for Writ of Certiorari have been mailed on this
the A/47 day of , 1983 to:
Edward J. Tuddenham
Texas Rural Legal Aid, Inc.
P.O. Box 2223
Hereford, Texas 79045
Solicitor General
Department of Justice
Washington, D.C. 20530
MOREHEAD, SHARP & TISDEL
CRENSHAW, DUPREE
& MILAM
6 Jom ch Flan
Attorneys for Petitioner
A-l
APPENDIX
Paulina CASTILLO, et al.,
Plaintiffs-Appellants,
Vv.
Ercell GIVENS, Defendant-Appellee.
No. 81-1520.
United States Court of Appeals,
Fifth Circuit.
May 6, 1983.
Field workers brought action against farm owner under
Fair Labor Standards Act for unpaid minimum wages and liq-
uidated damages and also under Farm Labor Contractor Reg-
istration Act for liquidated damages. The United States Dis-
trict Court for the Northern District of Texas, Halbert O.
Woodward, Chief Judge, entered judgment for farm owner on
both claims, and workers appealed. The Court of Appeals,
Johnson, Circuit Judge, held that: (1) person who farm owner
hired to procure and supervise field workers to chop cotton
was an employee of farm owner for purposes of Fair Labor
Standards Act and therefore field workers were also employ-
ees of farm owner for purposes of the Act; (2) violations of
Fair Labor Standards Act by farm owner were willful within
meaning of three-year statute of limitations for willful viola-
tions of the Act; and (3) farm owner violated Farm Labor Con-
tractor Registration Act by not maintaining payroll records
on his field workers and those violations were intentional
within meaning of Act.
Reversed and remanded.
Higginbotham, Circuit Judge, specially concurred and filed
opinion.
A-2
1. Labor Relations [Key ]1562
Ultimate conclusion that an individual is am “employee”
within meaning of Fair Labor Standards Act is a legal deter-
mination rather than a factual one. Fair Labor Standards Act
of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.
2. Labor Relations [Key]1121
Person who farm owner hired to procure and supervise field
workers to chop cotton, who was illiterate with only two years
of schooling, who kept his “records” of the number of field
workers and the number of hours they worked on parts of
paper sacks which he brought to farm owner’s bank, who was
not paid enough to pay the field workers minimum wage and
who was registered as a farm labor contractor, was an
employee of farm owner for purposes of Fair Labor Standards
Act and therefore field workers were also employees of farm
owner for purposes of the Act. Fair Labor Standards Act of
1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.
3. Labor Relations [Key ]1124
In determining an individual’s status as “employee” within
meaning of Fair Labor Standards Act, a defendant’s intent or
the label that he attaches to the relationship is meaningless
unless it mirrors the economic realities of the relationship.
Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. §
201 et seq.
4. Labor Relations [Key]1479
Standard for willfulness, for purposes of section of Portal-
to-Portal Act providing a three-year statute of limitations for
willful violations of Fair Labor Standards Act, requires that
employer have nothing more than awareness of the possible
applicability of the Act; if an employer merely suspects that
A-3
his actions might violate the Act, the violation is willful.
Portal-to-Portal Act of 1947, § 6(a), 29 U.S.C.A. § 255(a).
5. Labor Relations [Key]1479
Violations of Fair Labor Standards Act by farm owner, who
had been in banking business for 55 years and who knew of
existence of minimum wage law and paid minimum wage to his
bank employees, were willful within meaning of three-year
statute of limitations for willful violations of the Act. Portal-
to-Portal Act of 1947, § 6(a), 29 U.S.C.A. § 255(a).
6. Labor Relations [Key]1124, 1301
An employer cannot escape record-keeping provisions of
Fair Labor Standards Act by delegating that duty to his
employees; furthermore, an employee must decide at his peril
which employees are covered by the Act. Fair Labor Stan-
dards Act of 1933, § 11(c), 29 U.S.C.A. § 211(¢).
7. Labor Relations [Key ]1567
In suit charging violations of Fair Labor Standards Act,
district court committed plain error in failing to specify bur-
den of proof with regard to determination of number of hours
worked by each employee. Fair Labor Standards Act of 1938,
§ let seq., 29 U.S.C.A. § 201 et seq.
8. Licenses [Key]11(5)
Person who farm owner hired to procure and supervise field
workers to chop cotton worked “for a fee” within meaning of
Farm Labor Contractor Registration Act and was therefore a
farm labor contractor within meaning of the statute. Farm
Labor Contractor Registration Act of 1963, § 3(b), as
amended, 7 U.S.C. (1976 Ed.), § 2042(b).
A-4
9. Labor Relations [Key]1645
Farm owner violated Farm Labor Contractor Registration
Act by not maintaining payroll records on his field workers
and those violations were intentional within meaning of Act.
Farm Labor Contractor Registration Act of 1963, § 2 et seq.,
as amended, 7 U.S.C. (1976 Ed.) § 2041 et seq.
Appeal from the United States District Court for the
Northern District of Texas.
Before THORNBERRY, JOHNSON and HIGGIN-
BOTHAM, Circuit Judges.
JOHNSON, Circuit Judge:
Plaintiffs, thirty-nine Mexican and Mexican-American
migrant farm laborers who chopped cotton in defendant's
fields during the summers of 1977 and 1978, brought this
action under section 216(b) of the Fair Labor Standards Act
(FLSA) for unpaid minimum wages and liquidated damages
and under section 2050a of the Farm Labor Contractor Reg-
istration Act (FLCRA) for liquidated damages. The district
court entered judgment for defendant on both claims, based
on the jury’s answers to nine special issues. Plaintiffs appeal
from the court’s denial of their motions for judgment n.o.v.
and alternatively for a new trial. With regard to the FLSA
claim, this Court reverses and remands for a new trial on the
number of hours worked by the individual plaintiffs and for a
finding by the Court as to an award of liquidated damages. '
With regard to the FLCRA claim, this Court reverses and
'The district court has discretion in whether to award liquidated damages
and, if it does, in the amount of the award if the court determines that the
defendant’s failure to pay minimum wage was in good faith and that he had
reasonable grounds to believe that his failure to pay minimum wage was
not a violation of the FLSA:
In any action commenced prior to or on or after May 14, 1947 to
recover unpaid minimum wages, unpaid overtime compensation, or liq-
A-5
remands for a determination of the number of violations com-
mitted and the award of liquidated damages in an amount of
up to $500 per violation.
I Facts
Defendant Ercell Givens, President of the First State Bank
of Abernathy for twenty-six years, owned a farm of approxi-
mately 4000 acres, of which about 1800 acres in 1977 and 2000
uidated damages, under the Fair Labor Standards Act of 1938, as
amended, if the employer shows to the satisfaction of the court that the
act or omission giving rise to such action was in good faith and that he
had reasonable grounds for believing that his act or omission was not a
violation of the Fair Labor Standards Act of 1938, as amended, the court
may in its sound discretion, award no liquidated damages or award any
amount thereof not to exceed the amount specified in section 216 of this
title.
29 U.S.C. § 260 (1975).
This Court has interpreted the statutory languages as follows:
Section 11 of the Portal-to-Portal Act (29 U.S.C. § 260], imposes upon an
employer seeking to escape liquidated damages the plain and substantial
burden of proving that its violation was “both in good faith and predi-
cated upon such reasonable grounds that it would be unfair to impose
upon him more than a compensatory verdict.”
Reeves v. International Telephone & Telegraph Corp., 616 F.2d 1342, 1352
(5th Cir. 1980) [citing Barcellona v. Tiffany English Pub, Inc., 597 F.2d
464, 468 (Sth Cir. 1979)]. In discussing the “reasonable good faith” require-
ment, this Court made the following statements:
(W]e also doubt the validity of ignorance as a defense to liability for liq-
uidated damages under Section 11. We do not believe an employer may
rely on ignorance alone as reasonable grounds for believing that its
actions were not in violation of the Act. Further, we feel that good faith
requires some duty to investigate potential liability under the FLSA.
Even inexperienced businessmen cannot claim good faith when they
blindly operate a business without making any investigation as to their
responsibilities under the labor laws. Apathetic ignorance is never the
basis of a reasonable belief.
Barcellona, 597 F.2d at 468-69.
A successful showing by defendant under 29 U.S.C. § 260 does not pre-
clude the award of liquidated damages. Under the language of the statute,
even if the court determines that defendant has met the “reasonable good
faith” requirement, the court nonetheless has discretion to award liqui-
dated damages.
A-6
acres in 1978 were devoted to cotton production. Defendant
employed five fulltime “hands” to run his farm as well as sea-
sonal temporary hands to perform jobs such as operating trac-
tors and feeding cattle. Defendant himself made the decisions
of when and where to prepare the fields, when to plough,
when to plant, when to cultivate, and when to harvest. In
order to produce a good cotton crop, cotton should be chopped
in the summertime* — the job simply involves chopping or
hoeing the weeds out of the rows of growing cotton. It is a
menial, unskilled task which requires no aptitude, no training,
and no ability to reason. It is a work of drudgery which can be
performed by persons ranging from very young to quite old; it
is accomplished with a simple instrument — the hoe. Defen-
dant employed Manuel Tonche to furnish him with a crew of
field workers and to chop his cotton.’ Defendant knew that
Tonche was registered with the Department of Labor (DOL)
as a farm labor contractor, and defendant required Tonche to
show him his identification card from the DOL at the begin-
ning of each season. Tonche, an illiterate with only a second-
grade education who “junked” cars (cut up the bodies and sold
the metal as scrap iron) in the winter, worked only for the
defendant. In search of field work, the workers contacted
Tonche. Tonche provided transportation to the fields for most
of the workers in his used school bus, but some came in their
own vans or pickups. Tonche’s son brought the hoes to the
fields in his pickup.
Tonche provided defendant with workers to chop his cotton
for four years ending in 19784 The crew varied in size, ranging
The cotton chopping season in the area involved runs from around June 20
to mid-August.
‘Although defendant claims that he “contracted with” Tonche only to chop
his cotton—not to furnish him with cotton choppers — defendant admitted
at trial that Tonche could not chop the cotton on a 2000-acre farm all by
himself.
‘Plaintiffs ask for unpaid minimum wages for the years 1977 and 1978.
A-7
from around thirty or forty up to fifty persons on any one day.
In addition to Tonche’s crew, defendant also hired the wives,
children, and friends of his fulltime hands to chop cotton.
Although defendant always paid his bank employees minimum
wage, he paid his cotton choppers, including Tonche, $1.65 an:
hour in 1977 and $1.75 an hour in 1978. The minimum wage
was $2.20 an hour in 1977 and $2.65 an hour in 1978. Although
defendant was aware of the minimum wage law and the
amount of the minimum wage in 1977 and 1978, he stated that
he did not realize that the law required him to pay minimum
wage to his farm workers as well as to his bank employees.
On each Friday, defendant would give Tonche a check based
on the number of hands and the number of hours Tonche
reported to him had been worked. Tonche would then mete
out the wages to the individual workers in cash. Tonche kept
track of the number of hands and the number of hours worked
on a daily basis and brought these figures to defendant on a
piece of a paper sack.’ Defendant would then copy Tonche’s fig-
ures into his own record book. Significantly, defendant did not
keep any further records other than his cancelled paychecks
to Tonche. In particular, defendant did not keep any records of
the individual plaintiffs’ names, their hours of work, or their
wages.
Both the exigencies of running a farm and his serving as
bank president prevented defendant from physically super-
vising the work of his farm employees at all times. Neverthe-
less, defendant went to the fields three or four times a week to
make sure the workers were in the right fields (his fields), to
check up on the number of hands working, and to make sure
how his entire farming operation was progressing. It was
*Tonche, with the help of his own children, kept a notebook of the individual
workers’ names (many were listed by nickname) and the number of hours
they worked. The names and figures were often but not always tran-
scribed into this notebook from loose pieces of paper where Tonche, his
son, or daughter had written them while in the fields.
A-8
defendant who made the decision on when to start chopping in
the season, on which fields to chop, and in what order the
fields were to be chopped. Moreover, defendant directed
Tonche which weeds were to be chopped and which weeds
were not to be chopped; defendant determined when a job was
finished.
In September 1978, the DOL investigated defendant’s farm-
ing operation and determined that defendant owed back
FLSA minimum wages to nine members of Tonche’s crew who
chopped cotton in defendant’s fields in 1977 and 1978; defen-
dant paid those nine workers. The DOL also investigated
defendant for violations of the FLCRA; defendant was
advised by letter in March 1979 that the DOL was not contem-
plating any further action on the violations indicated. In addi-
tion to Tonche, the plaintiffs who filed the instant action on
February 14, 1980,° were members of Tonche’s crew who did
not receive back minimum wages.’
The case was tried to a jury. At the close of all the evidence,
plaintiffs moved for a directed verdict on all issues except the
calculation of the number of hours of work performed by plain-
tiffs. The jury found against plaintiffs on each of nine special
issues submitted to it.” On June 19, 1981, the court entered
*These plaintiffs include those who were later added by filing a written
consent.
"Tonche, who was not a plaintiff under the FLCRA claim, died at the age of
fifty-six before the trial began on June 15, 1981. Tonche’s wife was substi-
tuted as his representative.
“In response to the special issues relating to the FLSA claim, the jury
found that (1) plaintiffs were not engaged in the production of goods for
commerce, (2) plaintiffs were not employees of defendant, and (3) defen-
dant’s failure to pay the minimum wage was not willful in 1977 or in 1978.
Special Issues 4 and 5 related to the number of hours the individual plain-
tiffs worked in 1977 and 1978. On the FLCRA claim the jury found that (1)
plaintiffs were not migrant workers; (2) Tonche was not a farm labor con-
tractor; (3) defendant did not fail to maintain payroll records of the individ-
ual plaintiffs showing all of the following information: total earnings in
each payroll period, all withholdings from wages, net earnings, number of
A-9
judgment for defendant on both claims. Plaintiffs moved for
judgment n.o.v. with respect to all issues and alternatively for
a new trial with regard to the hours they worked. In an order
of October 7, 1981, the court denied both the motion for judg-
ment n.o.v. and the motion for a new trial. With respect to the
FLSA claim, the court concluded that the jury’s finding that
plaintiffs were not engaged in the production of goods for com-
merce was not supported by the evidence. The court stated,
however, that the jury could have reasonably found that
defendant was not plaintiffs’ employer. With respect to the
FLCRA claim, the court held that the jury’s finding that plain-
tiffs were not migrant laborers was not supported by the evi-
dence. Nevertheless, the court stated that the jury could have
reasonably found that Tonche was not a farm labor contractor.
Plaintiffs appeal from this order,
II. FLSA Claim
The issues this Court must address concerning the FLSA
claim relate to the status of plaintiffs vis-a-vis defendant, the
willfulness of any violation of section 16(b), and the number of
hours plaintiffs worked.
A. Plaintiffs’ Status
1. A Question of Law
[1] This Court has repeatedly held that the ultimate con-
clusion that an individual is an “employee” within the meaning
of the FLSA is a legal determination rather than a factual
units of time employed, rate per unit of time, a statement of all sums paid
to Tonche on account of the labor of the worker, a statement of all sums
withheld by Tonche from the amount he received on account of the worker,
and the purpose of the above withholding; (4) any failure of defendant to
comply with the FLCRA was not willful,
A-10
one.” Most recently, in Robicheaux v. Radcliff Material, Inc.,
697 F.2d 662 at 666 (Sth Cir. 1983), th. Court dealt directly
with the standard of review for the determination of employee
status:
We review the district court’s determination [that the
plaintiff welders are employees within the meaning of the
F LSA] as being one of mixed law and fact. (citation omit-
ted). As to the trial court’s underlying factual findings
and factual inferences deduced therefrom, we are bound
by the clearly erroneous standard of Rule 52(a) of the
Federal Rules of Civil Procedure. /d. However, as to the
legal conclusion reached by the district court based upon
this factual data, i.e., here that these welders are
employees rather than independent contractors, we may
review this as an issue of law.
Prior to Robicheaux, this Court had occasion to address the
standard of review for the “employee” status determination in
Donovan v. American Airlines, Inc., 686 F.2d 267 (Sth Cir.
1982). There, this Court stated:
The standard of review of the district court’s decision is
that of a legal, and not a factual, determination. Thus,
although we are bound by the clearly erroneous standard
in reviewing the individual findings of fact leading to the
district court’s conclusions, we review the determination
that the students here were not employees as we review
any determination of law.
(citations omitted). The American Airlines holding is in
accord with this Court’s opinion in Donovan v. Tehco, 642 F.2d
141, 143 n. 4 (5th Cir. 1981) where we stated:
In reviewing the district court’s ultimate findings that
the workers at issue were independent contractors, we
*Any subsidiary factual issues leading to this conclusion are, of course,
questions of fact for the jury.
A-1l
are not constrained by the “clearly erroneous” standard.
Rather, these ultimate findings are treated as legal
determinations.
Donovan v. Tehco, Inc., 642 F.2d 141, 148 n. 4 (Sth Cir, 1981),
Prior to the Tehco decision, this Court in Weisel v. Singapore
Joint Venture, Inc., 602 F.2d 1185, 1189 n. 11 (Sth Cir, 1979),
had stated:
In reviewing the Trial Court’s ultimate finding that
Weisel was not an employee, we are not constrained by
the “clearly erroneous” test. Rather, that finding is
treated as a legal determination. (citation omitted).
However, the individual findings of fact leading to that
conclusion are examined under the “clearly erroneous”
test. See Mitchell v. Strickland Transportation Co., 228
F.2d 124, 126 (5th Cir. 1955).
The initial decision of this Circuit holding that the employee:
independent contractor status determination is a legal one
was Shultz v. Hinojoso, 432 F.2d 259 (5th Cir. 1970). In
Shultz, this Court stated:
There is no dispute as to the basic facts relating to the
engagement of Jiminez for the performance of the
cleanup work after he finished his day’s work as a slaugh-
terer. The trial court’s determination that these facts cre-
ated the relationship of an independent contractor . . . is
not a finding of fact which is bolstered by the clearly erro-
neous rule when reviewed by this court. In the early case
of Rutherford Food Corp. v. McComb, 331 U.S. 722, 67
S.Ct. 1473, 91 L.Ed. 1772, the Supreme Court as well as
the Court of Appeals for the Tenth Circuit, Walling v.
Rutherford Food Corp., 156 F.2d 513 [10th Cir. ], treated
such a finding as being subject to review as a matter of
law, notwithstanding an elaborate disagreement on this
point by Judge Phillips in the Court of Appeals. See 156
F.2d 513 at page 517. It is clear that the definition of
A-12
employment, as used in the Fair Labor Standards Act, is
“the broadest definition that has ever been included in
one act,”
Id. at 264°
Although the above-mentioned cases were tried to the
Court rather than to a jury, there is no basis to differentiate
between a jury and a nonjury case regarding the status of an
employee determination as legal or factual. The substantive
provisions of the Act at issue — violations of minimum wage,
overtime, and record keeping provisions — are the same in
both jury and nonjury cases. If the employee/independent
contractor determination is a legal one in a case tried to the
court, it must also be a legal one in a case tried to a jury.
Indeed, Robicheaux, although tried to the court, was a sec-
tion 216(b) suit in which the plaintiff-welders were entitled to
a jury trial.’’ A plaintiff's decision to exercise his right to a jury
“The Eleventh Circuit has also held that the issue of employee status is a
legal one which is not subject to the clearly erroneous standard of review,
but that the individual findings of fact which lead to that legal determina-
tion must be examined under the clearly erroneous standard. Donovan v.
New Floridian Hotel, Inc., 676 F.2d 468, 471 n. 4 (11th Cir, 1982).
The FLSA establishes three separate statutory causes of action: (1)
under Section 16(b), 29 U.S.C. § 216(b), an employee may sue his
employer for unpaid overtime compensation, unpaid minimum wages,
and an additional equal amount in liquidated damages; (2) under Section
16(c) the Secretary may sue on behalf of an employee or employees to
recover unpaid overtime, unpaid minimum wages, and an additional
equal amount as liquidated damages; and (3) under Section 17 the Sec-
retary may seek to enjoin violations of the FLSA and to restrain the
withholding of payment of minimum wages and overtime compensation
which are due employees under the Act.
nN
ae ie SS Se De
Actions brought under Section 16(c) by the Secretary or under Sec-
tion 16(b) by an employee have been consistently recognized as analo-
gous to actions at law. A party in those actions has the right to a jury
A-13
trial does not change the standard of review to be applied by
this Court."*
trial. Lewis v. Times Publishing Co., 185 F.2d 457 (5th Cir. 1950); 5 Moo-
re’s Federal Practice §38.27, p. 213-14. Section 11 of the Portal-to-Portal
Act provides, however, that the issue of liquidated damages is triable to
the court. McClanahan v. Mathews, 440 F.2d 320 (6th Cir, 1971).
Marshall v. Hanioti Hotel Corp., 490 F.Supp. 1020, 1022 & 1023 (N.D.Ga.
1980) (footnote omitted).
"Although the substantial line of authority in this Circuit has held that the
question of employee determination is a legal one, it must be noted that
there is contrary authority within the Circuit. In the recent case of Dono-
van v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983), this Court
stated:
[1] An “employer” is defined under Section 3(d) of the Act as includ-
ing “any person acting directly in the interest of an employer in relation
to an employee.” This term has been interpreted to encompass one or
more joint employers, Falk v. Brennan, 414 U.S. 190, 94 S.Ct. 427, 38
L. Ed.2d 406 (1973); Hodgson v. Griffin and Brand of McAllen, Inc., 471
F.2d 235 (5th Cir.), cert. denied, 414 U.S. 819, 94 S.Ct. 48, 38 L.Ed.2d
51 (1973); Wirtz v. Lone Star Steel Co., 405 F.2d 668 (5th Cir. 1968), 29
C.F.R. § 791.2 (1982). Whether a party is an employer or joint employer
for purposes of the FLSA [sic] is essentially a question of fact; accord-
ingly, appellate review is subject to the clearly erroneous standard.
The two cases cited by this Court in Sabine stated that “[w]Jhether a per-
son or corporation is an employer or joint employer is essentially a ques-
tion of fact” and therefore subject to review under the “clearly erroneous”
standard. Griffin and Brand, 471 F.2d at 237-38 (citing Lone Star Steel);
Lone Star Steel, 405 F.2d at 669-70 [citing Boire v. Greyhound Corp., 376
U.S. 478, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964)]. Two points need to be
made. First, the Sabine, Griffin and Brand, and Lone Star Steel opinions
all use the less-than-precise terminology “essentially a question of fact.” At
least in Lone Star Steel, this terminology was probably totally consistent
with the line of cases in this Circuit holding that the ultimate determina-
tion of employee status is a question of law. The trial court's “findings of
fact,” held to be not clearly erroneous, were attached to the Court’s opinion
in Lone Star Steel as an appendix. All of these findings of fact were indi-
vidual or underlying findings from which the Court could draw its legal
conclusion as to employee status. In Griffin and Brand, where this Court
reviewed the district court’s conclusion that defendant was a joint
employer under the clearly erroneous standard, the Court may have been
misled by the imprecise “essentially a question of fact” language in Lone
Star Steel. The determination is “essentially a question of fact” only if
A-14
Given the record testimony in the instant case, there are no
unresolved issues of fact which would alter this Court’s con-
clusion that plaintiffs were employees of defendant. The sole
there are unresolved, underlying factual questions. The application of the
rule of law regarding employee status to the underlying facts remains a
conclusion of law.
Secondly, the Lone Star Steel opinion relied upon the Supreme Court’s
opinion in Greyhound, 84 S.Ct. at 899; the Griffin and Brand opinion also
cited Greyhound. The Supreme Court in that case, however, did not state
that the determination whether a person is an employer (and that plaintiffs
therefore are employees) is essentially a question of fact. What the
Supreme Court stated was that the question “whether Greyhound pos-
sessed sufficient indicia of control to be an ‘employer’ is essentially a fac-
tual issue.” Jd. (emphasis added). Findings regarding indications of control
would, of course, be findings of fact. Most importantly, however, the
Supreme Court’s statement must be read in context. Greyhound involved
the circumstances under which a district court can undertake a plenary
review of orders of the National Labor Relations Board (Board) in certiti-
cation proceedings. The Court in Greyhound was making a contrast
between Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L. Ed.2d 210 (1958),
upon which the district court in Greyhound had predicated its jurisdiction,
and the factual situation in Greyhound. The district court in Greyhound
had held that the Board’s findings in the certification proceeding were
insufficient as a matter of law to establish a joint employer relationship and
that those findings established, as a matter of law, that Floors, Inc. was
the sole employer of the employees in question; the court held that the
Board had violated the National Labor Relations Act (NLRA) by attempt-
ing to conduct a representation election where no employment relationship
existed. The Court of Appeals had affirmed. The Supreme Court reversed,
stating that the case did not fall within the narrow and extraordinary lim-
its of the Kyne exception which allows district court review of orders
entered in certification proceedings. In Kyne, the Board conceded that it
had acted in excess of its delegated powers, and the Board’s order was con-
trary to a specific prohibition in the NLRA. The Court in Greyhound
stated:
And whether Greyhound possessed sufficient indicia of control to be an
“employer” is essentially a factual issue, unlike the question in Kyne,
which depended solely upon construction of the statute. The Kyne
exception is a narrow one, not to be extended to permit plenary district
court review of Board orders in certification proceedings whenever it
can be said that an erroneous assessment of the particular facts before
the Board has led it to a conclusion which does not comport with the law.
Judicial review in such a situation has been limited by Congress to the
A-15
question is whether the facts satisfy the statutory standard
for an “employee” under the FLSA. Since employee status
was established as a matter of law, the district court erred in
submitting it to the jury.
2. Employee Status
[2] In order to resolve the question whether plaintiffs
were employees of defendant, this Court will examine the
relationship between Tonche and defendant. If Tonche was an
employee of defendant, the plaintiff field workers were also
defendant's employees. Even in the event that Tonche were
an independent contractor, this Court could conclude that
Tonche was a joint employer with the defendant; in this
instance, the field workers would still be employees of the
defendant. Hodgson v. Griffin & Brand, 471 F.2d 235, 237 (5th
Cir.), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51
(1973). In this hypothetical situation, the Court could, of
course, conclude that Tonche was not a joint employer with
the defendant. Since this Court concludes that Tonche was an
courts of appeals, and then only under the conditions explicitly laid
down in § 9(d) of the Act.
Greyhound, 84 8.Ct. at 899.
Furthermore, Greyhound had argued that the Board had acted in excess
of its statutory powers when it found that Greyhound was an employer of
employees who were hired, paid, transferred, and promoted by an inde-
pendent contractor (Floors). In rejecting Greyhound’s argument, the
Supreme Court attempted to clarify that Greyhound’s possible employer
status was unaffected by any determination as to the status of Floors as an
independent contractor, i.e., a finding that Floors was an independent con-
tractor did not preclude the existence of factual questions concerning
Greyhound’s status as an employer. The Court's point was that underlying
factual issues regarding Greyhound’s status as an employer could still
remain despite a determination that Floors was an independent contractor
— independent contractor status does not necessarily mean that the con-
tractor is the sole person responsible for his employees under the Act.
Placed in context, the “essentially a factual issue” statement in Greyhound
does not undermine this Circuit’s decision to review the ultimate conclu-
sion as to employer status under the FLSA as a question of law.
A-16
employee of defendant, we do not examine the possibility of a
joint employer status.
[3] Defendant maintains that he hired Tonche as an inde-
pendent contractor to chop his cotton” and that plaintiff field
workers were therefore employees of Tonche. In determining
an individual's status as “employee” within the meaning of the
FLSA, however, defendant’s intent or the label that he
attaches to the relationship is meaningless unless it mirrors
the “economic realities” of the relationship. Rutherford Food
Corp. v. McComb, 331 U.S. 722, 67S.Ct. 1473, 1476, 91 L.Ed.
1772 (1947); Donovan v. Tehco, 642 F.2d at 143; Usery v. Pil-
grim Equipment Co., 527 F.2d 1308, 1315 (5th Cir.), cert.
denied, 429 U.S. 826, 97 S.Ct. 82, 50 L.Ed.2d 89 (1976);
Mitchell v. Strickland Transportation Co., 228 F.2d 124, 126
(5th Cir. 1955). Employee/independent contractor status
under federal social welfare legislation is determined in light
of the purposes of the legislation:'* “[E]mployees are those
who as a matter of ecoiumic reality are dependent upon the
‘Defendant argues that he contracted with Tonche to chop his cotton — not
to furnish him with cotton choppers. This verbal distinction represents
nothing more than an attempt at label attachment; the distinction is sig-
nificant only insofar as it mirrors the economic reality of the relationship.
See Donovan v. Tehco, 642 F.2d at 143. Not surprisingly, defendant admit-
ted at trial that he expected Tonche to get the cotton chopped and that
Tonche could not do the chopping all by himself, that he had to get others
to chop.
“The Supreme Court in Rutherford, 331 U.S. at 727, 67 S.Ct. at 1475
explained the purpose of the FLSA:
The Fair Labor Standards Act was passed by Congress to lessen, so
far as seemed then practicable, the distribution in commerce of goods
produced under subnormal labor conditions. An effort to eliminate low
wages and long hours was the method chosen to free commerce from the
interferences arising from production of goods under conditions that
were detrimental to the health and well-being of workers. It was sought
to accomplish this purpose by the minimum pay and maximum hour pro-
visions and the requirement that records of employees’ services be kept
by the employer.
A-17
business to which they render service.” Bartels v. Birming-
ham, 332 U.S. 126, 67 S.Ct. 1547, 1550, 91 L.Ed. 1947 (1947)."°
As this Court noted in Fahs v. Tree-Gold Co-Op Growers, 166
F.2d 40, 44 (5th Cir. 1948):
Under these decisions, the act is intended to protect
those whose livelihood is dependent upon finding employ-
ment in the business of others. It is directed toward
those who themselves are least able in good times to
make provisions for their needs when old age and unem-
ployment may cut off their earnings. The statutory cov-
erage is not limited to those persons whose services are
subject to the direction and control of their employer, but
rather to those who, as a matter of economic reality, are
dependent upon the business to which they render
service.
Although defendant acknowledges that the common-law
control test is not conclusive, defendant argues that the
common-law control factors are material in defining an indi-
vidual’s status for purposes of the FLSA. Defendant places
great weight on various specific control elements — defendant
did not decide how many or which workers to hire and fire,'®
‘The critical decisions interpreting the tern “employee” in federal social
welfare legislation are as follows: NLRB v. Hearst, 322 U.S. 111, 64 S.Ct.
851, 88 L.Ed. 1170 (1944) (for purposes of the National Labor Relations
Act); United States v. Silk, 331 U.S. 704, 67 S.Ct. 1468, 91 L.Ed. 1757
(1947), and Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed.
1947 (1947) (for purposes of employment taxes on employers under the
Social Security Act, as amended); and Rutherford Food Corp. v. McComb,
331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) (for purposes of the Fair
Labor Standards Act).
‘Defendant conceded at trial that he had the authority to fire a crew of
workers.
A-18
did not supervise the details of their work,’ did not furnish the
hoes, did not provide transportation, did not decide when the
workers arrived at the fields and when they quit, and, defen-
dant argues, did not determine their rate of pay.’*
"Although defendant did not supervise the minor, regular tasks, the record
demonstrates that he did exercise control over the significant aspects of
the farming operations. Defendant showed Tonche where the fields were
located; defendant determined which fields would be hoed and in what
order; he gave instructions regarding which weeds to chop and which to
leave in the ground; he determined when the workers had finished a job.
Defendant went to the fields three to four times a week to check up on
Tonche and the workers. He would make sure that they were in the right
fields and he would often doublecheck Tonche’s count of the number of
workers in the fields on a particular day. Defendant admitted that it is the
nature of the farming business that the farmer has to depend on his work-
ers —the farmer cannot be in the fields supervising at all times.
‘Defendant argued at trial that Tonches set the workers’ wages. Defendant
testified that he asked Tonche how he wanted to “figure it” and Tonche
replied he would figure $1.65 an hour (in 1977). Defendant also testified
that he had no agreement with Tonche as to how much Tonche would pay
the workers and that defendant had no idea how much Tonche did in fact
pay them. Defendant also testified, however, as follows: “We [the farmers
in the community] paid them the same amount all over the place for
hoeing. All community-wide, it was the same. . . . I know what they [the
farmers who were customers of defendant's bank] do. I know what they
pay. They ask me what I am paying, and we are all the same.” In addition,
defendant testified that he gave money to Tonche for each day according to
the number of hands he had listed as working on that day and the number
of hours they worked. That is, defendant multiplied the number of work-
ers times the number of hours worked times $1.65 an hour and on Fridays
gave Tonche one check for the total number of hours worked. Moreover,
defendant testified as follows:
Q. You also hired friends of the wives of your full-time hands to hoe cot-
ton, didn’t you?
Sometimes they would have a girl with them.
And you paid them $1.65 in 1977?
I paid them the same.
And you paid them $1.75 in 1978?
Right.
In fact, you paid all your cotton hoers $1.65 in "77 and $1.75 in ‘7k, isn't
that true?
That's true.
> O>OvOr
A-19
By focusing on selected and isolated control factors, how-
ever, defendant loses sight of the circumstances of the whole
activity. See Rutherford, 331 U.S. at 730, 67 S.Ct. at 1477.
This Court has on several occasions found employment status
even though the defendant-employer had no control over cer-
tain aspects of the relationship, e.g., the right to set hours,
hire and fire, or determine wages. Usery, 527 F.2d at 1312
(finding that “[iJn the total context of the relationship neither
the right to hire employees nor the right to set hours” indi-
cated such lack of control by [defendant] as would show that
the laundry operators were independent contractors); Med-
nick v, Albert Enterprises, Inc., 508 F.2d 297, 301 (5th Cir.
1975) (stating that “the courts have had little difficulty in find-
ing employment status though the employee could hire others
within his own discretion”); Fahs, 166 F.2d at 43 (concluding
that contractors at defendant's packing house were employees
of defendant even though defendant had no right to control
the number of employees, their wages or the hours they
worked). As this Court stated in Mednick, 508 F.2d at 300. the
“ultimate criteria” for the determination of employee status
are found in the purposes of the Act. The presence of some
indications of independent contractor status, however, must
not obscure the focal inquiry — is the individual whose status
is in question the “kind of person” meant to be protected by
the FLSA? Jd. at 301.
Q. I believe, though, in your deposition you said that there was one per-
son you felt sorry for a little bit and you had given her $2.00 an hour?
Well, there may be.
Do you recall that?
I won't doubt but what that is true. I think that’s right. I think I have.
I don’t remember it offhand, who it was. But may have a special
daughter-in-law or son-in-law or something that you give $2.00 to. I
don’t know, I don’t know. I paid $2.00 maybe to somebody.
Assuming, Arguendo, the existence of an issue of fact concerning who
set the workers’ wages, this Court would still come to the same legal con-
clusion even if the jury resolved the issue in favor of defendant.
aa
A-20
The presence of certain elements of control is not necessar-
ily determinative. Whether Tonche was exposed “to the evils
the statute [FLSA] was designed to eradicate,” see id. at 300,
hinges upon whether he was dependent upon defendant’s
farming operation. Indeed, “(t]he touchstone of ‘economic
reality’ in analyzing a possible employee/employer relation-
ship for purposes of the FLSA is dependency.” Weisel, 602
F.2d at 1189. The determinative question is whether the per-
son is “dependent upon finding employment in the business of
others.” Fahs, 166 F.2d at 44. Two factors have emerged as
critically significant in answering this question: (1) how spe-
cialized the nature of the work is, and (2) whether the individ-
ual is “in business for himself.”’* Mitchell v. John R. Cowley &
Brothers, Inc., 292 F.2d 105, 108 (5th Cir. 1961). The first fac-
tor looks to whether the individual “regularly performs tasks
essentially of a routine nature and that work is a phase of the
normal operations of that particular business.” If so, the Act
ordinarily regards him as an employee. /d. The record
unquestionably demonstrates the rote nature of Tonche’s
work. Cotton chopping involves one piece of equipment and
one task: taking a hoe and chopping the weeds out of cotton. It
is such a simple task that even children can do it — it requires
"Rutherford, 67 S.Ct. at 1477 and its companion case, United States v. Silk,
331 U.S. 704, 67 S.Ct. 1463, 1469, 91 L.Ed. 1757 (1947) (dealing with the
meaning of employee for purposes of social security taxes), set out criteria
for distinguishing employees from independent contractors. The Ruther-
ford criteria are as follows:
(1) The workers did a specialty job on a production line.
(2) The contractual terms did not vary in any material way as one
worker succeeded another.
(3) The premises and equipment were those of the proprietor.
(4) The workers had no “business organization” that could offer their
services to others.
(5) The proprietor’s manager kept close watch over the workers’
activities.
(6) The workers could profit from “efficiency,” but it was the efficiency
of the pieceworker, not that of an “enterprise that actually depended for
A-21
no aptitude, no training, no skill, and no experience. More-
over, the evidence demonstrates that cotton chopping was
merely a phase of the normal operation of defendant's cotton
farming business. Cotton chopping constituted a part of an
“Integrated eocnomic unit” devoted to the growing of cotton.
See Rutherford, 67 S.Ct. at 1475 & 1476; Shultz, 432 F.2d at
264; Fahs, 166 F.2d at 44. Chopping the cotton made it grow
and produce better, and made it easier to harvest. Chopping
the cotton was an integral phase of defendant’s entire farming
operations. Although the chopping season only runs from mid-
June to mid-August, the work is recurring and of relative per-
manence — it has to be done every year during the growing
season in order to harvest a good cotton crop. In addition to
chopping cotton,” Tonche supervised the workers in the field,
provided transportation for some, kept what records there
were of the number of workers and their hours, received a
check from defendant every Friday, and meted out the earn-
ings to the individual workers. All of these tasks were routine.
The first inquiry, therefore, points strongly to employee sta-
tus for Tonche and therefore for the field workers.
success upon the initiative, judgment or foresight of the typical indepen-
dent contractor.”
Mednick, 508 F.2d at 300 (citing Rutherford). The Silk criteria are as fol-
lows: “(1) the permanency of the working relationship, (2) the opportunity
for profit and loss, (3) investment in material, (4) the degree of control,
and (5) the individual's skill.” Donovan v. Tehco, 642 F.2d at 143 (citing
Silk). Obviously, some of these 11 criteria overlap and some might not be
relevant depending upon the particular case. This Court has stated that it
is not possible to assign each of these factors a specific weight and that it is
not necessary that evidence exist with respect to each factor in order to
determine whether an employment relationship exists. Hickey v. Arkla
Industries, Inc., 688 F.2d 1009, 1012 (5th Cir. 1982). The cases tend to
crystallize the criteria into the two basic inquiries listed above. Indeed,
this Court in Mednick, 508 F.2d at 300, cautioned against placing too much
emphasis on the Rutherford and Silk criteria, thereby losing sight of the
ultimate criteria (the dependency question).
*See, note 3, supra.
A-22
The second factor is the “focal inquiry in the characteriza-
tion process”: “whether the individual is or is not, as a matter
of economic fact, in business for himself.” Donovan v. Tehco,
642 F.2d at 143. The record here does not indicate that Tonche
had anything that could be called an independent business as
distinguished from personal labor.”’ Tonche was an illiterate
with only two years of schooling. He could not read or write in
either Spanish or English; he only knew how to write his name
and numbers and how to figure. He kept his “records” of the
number of field workers and the number of hours they worked
on parts of paper sacks which he brought to defendant’s bank.
Some of these “records” were later transcribed into Tonche’s
record book by Tonche’s son or daughter. The workers were
often listed in Tonche’s book by nicknames or by families.
Tonche had “no experience or qualifications to distinguish him
“This Court in Donovan v. Tehco, 642 F.2d at 144, held that, given the
exceptionally broad definition of employee in the FLSA, evidence intro-
duced by the Secretary of Labor that the individuals in question were on
the defendant-employer’s payroll was sufficient to shift the burden of pro-
ducing evidence to defendant. (The evidence consisted of wage transcrip-
tions based on defendant's payroll records showing the number of hours
each individual worked for defendant and his rate of pay.) This Court con-
cluded that since defendant introduced little or no evidence to show that
the individuals on its payroll were “in fact in business for themselves,” the
district court should have found that the Government had established the
employee status of these individuals by the necessary preponderance of
the evidence. In the instant case, plaintiffs introduced the checks that
were given by defendant to Tonche in 1977 and 1978 as well as defendant's
notebook in which defendant had recorded on a daily basis the information
imparted to him by Tonche—the number of hands and the number of hours
they worked. This evidence was sufficient to shift the burden of producing
evidence that Tonche was in fact in business for himself to defendant.
Defendant totally failed to carry this burden with regard to the issue
before the Court — whether Tonche, as an independent businessman, was
engaged in the business of offering crews of workers to defendant and
other growers. (emphasis added). Assuming, arguendo, the relevance of
the fact that Tonche junked cars in the winter, defendant likewise wholly
failed to carry his burden of producing evidence that Tonche was not
dependent on defendant's farming operation for his livelihood.
A-23
from the general run of workers.” See Mednick, 508 F.2d at
303. Although Tonche did exercise some control over the field
workers, there was no “economic substance” behind his
power. See id. at 302. The fact that Tonche supervised minor,
routine tasks cannot be “bootstrapped into an appearance of
real independence.” See Usery, 527 F.2d at 1312. Neither
minor record keeping nor rote work, even if the work requires
industriousness, is indicative of independence and nonem-
ployee status. /d. at 1314. Any decisions involving judgment,
initiative, or basic control were made by defendant, not
Tonche. Tonche did not exert control over any meaningful part
of defendant’s business such that Tonche’s “part” stood as a
separate economic entity. See id. at 1312-13. Given the rate of
pay and method of payment (by the hour) there was no real
opportunity for Tonche to make any profit or loss. Except for
the one simple and virtually indestructible instrument utilized
— the hoe — all investment or risk capital was provided by
defendant. Tonche’s investment in hoes was “minimal in com-
parison with the total investment in land, heavy machinery
and supplies necessary for growing” cotton. See Rea! v. Dris-
coll Strawberry Associates, Inc., 603 F.2d 748, 755 (9th Cir.
1979). Tonche’s relationship with defendant was of limited
duration but of a permanent nature, recurring every year.”
Significantly, Tonche did not work or provide workers for any
grower other than defendant. The record here does not supply
any indicia whatsoever of a business operated by Tonche
whereby he offered crews of workers to other growers.
Indeed, Tonche did not recruit the workers as an independent
businessman weuld. Instead, the workers, who were His-
panic, called Tonche from South Texas to inquire about work.
Tonche did not operate with recognizable or consistent crews
in that the hands varied in number from day-to-day. In short,
Tonche had little to transfer but his own labor. See id. at 1314.
“The work done by the packing house contractors (determined to be
employees) in Fahs, 166 F.2d at 45, was also seasonal.
A-24
Of particular importance is the fact that defendant did not
pay Tonche enough for Tonche himself to pay the workers min-
imum wage; it was therefore impossible for Tonche to comply
with the FLSA. See Mitchell, 292 F.2d at 109. Tonche, as an
economic entity, was not capable of doing business elsewhere.
See Usery, 527 F.2d at 1315. The economic reality of the situ-
ation was that the workers were dependent upon defendant —
not Tonche — to pay them the minimum wage. They were
dependent upon defendant’s cotton growing business — not
any “business” of Tonche’s.” As this Court stated in Mednick,
508 F.2d at 303:
An employer cannot saddle a worker with the status of
independent contractor, thereby relieving itself of its
duties under the F.L.S.A., by granting him some legal
powers where the economic reality is that the worker is
not and never has been independently in the business
which the employer would have him operate.
This approximately fifty-four year old illiterate cotton chop-
per cannot be said to be an independent businessman in any
meaningful sense.
One last point is in order. Defendant cannot rely on Tonche’s
registration as a “farm labor contractor” to establish indepen-
dent contractor status for Tonche for purposes of the FLSA,
thereby insulating himself from the FLSA requirements. As
the Court in Marshall v. Presidio Valley Farms, Inc., 512
F.Supp. 1195, 1197 (W.D. Tex. 1981), stated: “This interpre-
tation would permit wholesale evasion of the requirements of
the F.L.S.A. Nothing in the Farm Labor Contractors Act
suggests that this court must apply that Act to the exclusion
of the F.L.S.A.” The answer to the question of employee sta-
“Of course, these facts also support the conclusion that the field workers
were employees of defendant. Since this Court has concluded that Tonche
was an employee of defendant, we do not separately discuss the relation-
ship of the employees to defendant.
A-25
tus lies in the “economic realities” of the situation. In the case
at hand, those economic realities allow only one conclusion:
Tonche was an employee of defendant.
B. Willfulness
[4] Section 255(a)** of the Portal-to-Portal Act provides a
three-year statute of limitations for willful violations of the
FLSA” The standard for willfulness was established by this
Circuit in Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139,
1142 (5th Cir. 1971), cert. denied, 409 U.S. 948, 93 S.Ct. 292,
34 L.Ed.2d 219 (1972). This Court in Jiffy June stated that the
test is whether the employer knew the FLSA was in the pic-
ture. /d. This standard requires that employers have nothing
more than “awareness of the possible applicability of the
FLSA.” Jd. If an employer merely suspects that his actions
might violate the Act, the violation is willful. The Court
explained the necessity for this standard as follows:
The entire legislative history of the 1966 amendments
of the FLSA indicates a liberalizing intention on the part
of Congress. Requiring employers to have more than
“29 U.S.C. § 255(a) provides as follows:
§ 255. Statute of limitations
Any action commenced on or after May 14, 1947, to enforce any cause
of action for unpaid minimum wages, . . . under the Fair Labor Stan-
dards Act of 1938, as amended, . . .
(a) if the cause of action accrues on or after May 14, 1947 — may be
commenced within two years after the cause of action accrued, and
every such action shall be forever barred unless commenced within two
years after the cause of action accrued, except that a cause of action aris-
ing out of a willful violation may be commenced within three years after
the cause of action accrued.
“Plaintiffs in this case do not request recovery of unpaid wages for three
years back. The significance of the willfulness issue relates to (1) whether
plaintiffs’ 1977 wage claims are barred (a two-year statute would bar any
claims that accrued prior to February 14, 1978), and (2) whether plaintiff
Reynaldo Arriolas’ (added as a plaintiff in February 1981 by an amended
complaint) 1978 wge claim is barred.
A-26
awareness of the possible applicability of the FLSA
would be inconsistent with that intent.
Id.
[5] On appeal, defendant makes two arguments. First he
contends that he had no reason to believe the FLSA was “in
the picture” because he hired Tonche as an independent con-
tractor and therefore assumed plaintiffs were employees of
Tonche. This argument is without merit. It is little more than
an attempt to exculpate himself by portraying Tonche in the
guise of an independent contractor, by attaching a label to
him. The Jiffy June standard mandates the rejection of defen-
dant’s argument: a violation committed in good faith can
indeed be “willful.” Jd. at 1141.
Secondly, defendant argues that his violation was not willful
because he had no knowledge that the FLSA was applicable.
The Jiffy June standard does not require that defendant know
that his actions are governed by the FLSA. It requires only
that the employer have an “awareness of the possible applic-
ability” of the Act. Indeed, this Court has unequivocably
rejected the argument of “lack of knowledge” of the applica-
bility of the FLSA: “An ostrich-like cultivation of ignorance
has never been considered a defense to liability for willful vio-
lation of the Act.” Brennan v. Heard, 491 F.2d 1, 3 (5th Cir.
1974).
This Court turns to the record in the instant case to deter-
mine whether defendant had reason to suspect the FLSA was
“in the picture.” Defendant testified that he had been in the
banking business for fifty-five years. Defendant had held the
position of President of the First State Bank in Abernathy for
twenty-six years and owned stock in the bank. As president of
the bank, defendant worked in that business five days a week;
he was aware of the minimum wage law and what the mini-
mum wage was in 1976, 1977, and 1978. Defendant admitted
that he had always paid his bank employees minimum wage,
A-27
but protested that he did not know the minimum wage applied
to his farm workers. Defendant used a particular law firm for
legal advice, but testified that he had never even made inquiry
of his attorneys whether his farm employees were covered by
the minimum wage law.
Given this record testimony, defendant may not assume “an
ostrichlike cultivation of ignorance” and urge it as a defense.
Good faith ignorance will not shield a defendant from his obli-
gation to make “further inquiries” and to “determine the exact
parameters of his statutory obligation.” See id. In Jiffy June,
the defendant had even sought and secured legal advice that
his employees were exempt from the FLSA. Jiffy June, 458
F.2d at 1141-42. Even so, his violation was held to be willful.
Here, the fact that defendant knew of the existence of the
minimum wage law and paid minimum wage to his bank
employees compels a finding of willfulness under the Jiffy
June standard.
C. Number of Hours Worked
{6] Defendant failed to keep records of the hours worked
by the individual plaintiffs*® as required by 29 U.S.C. §
211(c) This section places on the employer the obligation of
keeping accurate records of the hours worked by his employ-
ees; the employer cannot transfer his statutory duty to his
*The only records kept by defendant were his weekly paychecks to Tonche
and a notebook which contained a tally of the hours worked each week (list-
ing the number of hands and the number of hours worked) in 1978.
729 U.S.C. § 211(c) provides as follows:
(c) Every employer subject to any provision of this chapter or of any
order issued under this chapter shall make, keep, and preserve such rec-
ords of the persons employed by him and of the wages, hours, and other
conditions and practices of employment maintained by him, and shall
preserve such records for such periods of time, and shall make such
reports therefrom to the Administrator as he shall prescribe by regula-
tion or order as necessary or appropriate for the enforcement of the pro-
visions of this chapter or the regulations or orders thereunder.
A-28
employees. Goldberg v. Cockrell, 303 F.2d 811, 812 n. 1 (5th
Cir. 1962).
Defendant argues on appeal that his failure to keep records
was mitigated by the fact that Tonche kept records which
were introduced into evidence. Tonche’s records were clearly
incomplete and insufficient to satisfy the record keeping pro-
visions of the Act. Moreover, this Court in Goldberg, id.,
stated that “while there is nothing to prevent an employer
from delegating to his employees the duty of keeping a record
of their hours, the employer does so at his peril. He cannot
escape the record keeping provisions of the Act by delegating
that duty to his employees.” (citing Mitchell v. Reynolds, 125
F.Supp. 337, 340 (W.D. Ark. 1954)). Furthermore, an
employer must decide at his peril which employees are
covered by the Act. George Lawley & Son Corp. v. South, 140
F.2d 439 (1st Cir.), cert. denied, 322 U.S. 746, 64 S.Ct. 1156,
88 L.Ed. 1578 (1944).
In Anderson v. Mount Clemens Pottery Co., 328 U.S. 680,
66 S.Ct. 1187, 1192, 90 L.Ed. 1515 (1946), the Supreme Court
specified the burden of proof in cases where the employer has
failed to maintain the records required by the FLSA:
In such a situation, we hold that an employee has carried
out his burden if he proves that he has in fact performed
work for which he was improperly compensated and if he
produces sufficient evidence to show the amount and
extent of that work as a matter of just and reasonable
inference. The burden then shifts to the employer to
come forward with evidence of the precise amount of
work performed or with evidence to negative the reason-
ableness of the inference to be drawn from the employ-
ee’s evidence. If the employer fails to produce such evi-
dence, the court may then award damages to the
employee, even though the result be only approximate.
A-29
A number of Fifth Circuit cases have applied this standard.
See, e.g., Skipper v. Superior Dairies, Inc., 512 F.2d 409, 419-
20 (5th Cir. 1975); Brennan v. General Motors Acceptance
Corp., 482 F.2d 825, 829 (5th Cir. 1973); Shultz, 432 F.2d at
261.
In formulating this standard, the Court was concerned that
employees not be penalized by an employer’s failure to comply
with its statutory duty to maintain accurate records:
When the employer has kept proper and accurate rec-
ords the employee may easily discharge his burden by
securing the production of these records. But where the
employer's records are inaccurate or inadequate and the
employee cannot offer convincing substitutes a more dif-
ficult problem arises. The solution, however, is not to
penalize the employee by denying him any recovery on
the ground that he is unable to prove the precise extent
of uncompensated work. Such a result would place a pre-
mium on an employer's failure to keep proper records in
conformity with his statutory duty; it would allow the
employer to keep the benefits of an employee’s labors
without paying due compensation as contemplated by the
Fair Labor Standards Act.
Anderson, 66 S.Ct. at 1192.
[7] Inthe instant case, plaintiffs met their burden of proof
by demonstrating that they performed work and were not
compensated in accordance with the statute. Thirteen plain-
tiffs testified regarding the hours they and members of their
families worked. Plaintiffs’ witness Walter Johnston, a Ph.D.
candidate in statistics, calculated a minimum and maximum
number of hours each plaintiff worked, basing his calculations
on plaintiffs’ testimony. Defendant calculated his payments to
Tonche based on the rate of $1.65 per man hour in 1977 and
$1.75 per man hour in 1978. The court took judicial notice of
A-30
the minimum wage in these two years: $2.20 an hour in 1977
and $2.65 an hour in 1978. At that point, the burden of prvof
shifted to defendant to prove the precise amount of work
plaintiffs performed or to negative” the reasonableness of the
inferences to be drawn from plaintiffs’ evidence.”
The court, however, failed to properly piace the burden of
proof. The court’s only instruction to the jury in this regard
was that “it is the duty of an employer to keep and maintain
accurate records of the number of hours that an employee
works for said employer and it is not the duty of the employee
to keep such records.”
Plaintiffs did not object to the court’s instruction. The bur-
den of proof, however, is “always of major importance,” Shep-
pard Federal Credit Union v. Palmer, 408 F.2d 1369, 1372
(5th Cir. 1969) and this Court is persuaded that proper place-
ment of the burden of proof in this case could have made a sub-
stantial difference in the determination of the number of hours
worked by each plaintiff. This Court therefore concludes that
the district court’s charge constituted plain error and reviews
the instruction on appeal despite plaintiffs’ failure to object at
the trial leve’. Because the court failed to properly place the
burden of proof, this Court reverses and remands for a new
trial on the number of hours worked by plaintiffs.
Webster's defines “negative” as follows: “to demonstrate the falsity of: dis-
prove” or “contradict.” Webster’s Third New International Dictionary
(1976).
**In the instant case, defendant's efforts to impeach plaintiffs’ testimony
were minimal. Defendant attempted to show that the names of certain
plaintiffs did not appear in Tonche’s records and that Tonche’s record books
accounted for fewer hours than were paid for by defendant in his checks to
Tonche. Plaintiffs’ own testimony, however, had already established that
Tonche’s records were incomplete. Otherwise, testimony by defendant's
fulltime hands (who planted, ploughed, and harvested) merely made gen-
eral allegations that the field workers were lazy and misrepresented the
number of hours they worked. This testimony did not identify any partic-
ular worker or workers.
A-31
C. Conclusion
This Court has concluded that Tonche was an employee of
defendant and that therefore plaintiffs were defendant's
employees, that defendant’s failure to pay minimum wage was
willful, and that the district court’s erroneous instruction
which failed to specify the burden of proof necessitates a new
trial on the number of hours worked by the individual
plaintiffs.
Il. The FLCRA Claim
The issues chis Court must address concerning the FLCRA
claim involve the questions whether Tonche was a farm labor
contractor and whether defendant's violation of the Act was
intentional.
A. The Fee Issue
[8] The FLCRA requires that a farmer who uses a con-
tractor (1) verify that the contractor is registered before hir-
ing him®’ and (2) maintain wage and hour records of the indi-
vidual members of the contractor's crew."! Defendant made
“7 U.S.C. § 2043(c) provides as follows:
(c) No person shall engage the services of any farm labor contractor to
supply farm laborers unless he first determines that the farm labor con-
tractor possesses a certificate from the Secretary that is in full force and
effect at the time he contracts with the farm labor contractor.
"7 U.S.C. § 2050¢ provides as follows:
§ 2050c. Recordkeeping
Any person who is furnished any migrant worker by a farm labor con-
tractor shall maintain all payroll records required to be kept by such
person under Federal law, and with respect to migrant workers paid by
a farm labor contractor such person shall also obtain from the contractor
and maintain records containing the information required to be provided
to him by the contractor under section 2045(e) of this title.
Section 2045(e) provides that “[e]very farm laborer contractor shall —
(e) in the event he pays migrant workers engaged in interstate agri-
cultural employment, either on his own behalf or on behalf of another
person, keep payroll records which shall show for each worker total
A-32
certain that Tonche was registered as a farm labor contractor
but made no effort to maintain the statutorily-required pay-
roll records on plaintiffs. The jury’s response to Special Issue
8 that defendant did not fail to obtain and maintain payroll rec-
ords finds no support in the evidence.
The question on appeal is whether defendant used a farm
labor contractor within the statutory definition of the term.
The FLCRA defines a farm labor contractor as follows: “any
person, who for a fee, either for himself or on behalf of another
person, recruits, solicits, hires, furnishes, or transports ten or
more migrant workers (excluding members o* his immediate
family) at any one time in any calendar year for interstate
agricultural employment.” 7 U.S.C. § 2042(b). During the
period when defendant dealt with Tonche, Tonche was regis-
tered with the DOL as a farm labor contractor pursuant to 7
U.S.C. § 2043(a). Defendant conceded that each year Tonche
worked for him, he asked Tonche to show him Tonche’s regis-
tration card™ before Tonche first started working and before
paying him.®
earnings in each payroll period, all withholdings from wages, and net
earnings. In addition, for workers employed on a time basis, the number
of units of time employed and the rate per unit of time shall be recorded
on the payroll records, and for workers employed on a piece rate basis,
the number of units of work performed and the rate per unit shall be
recorded on such records. In addition he shall provide to each migrant
worker engaged in interstate agricultural employment with whom he
deals in a capacity as a farm labor contractor a statement of all sums paid
to him (including sums received on behalf of such migrant worker) on
account of the labor of such migrant worker. He shall also provide each
such worker with an itemized statement showing all sums withheld by
him from the amount he received on account of the labor of such worker,
and the purpose for which withheld. The Secretary may prescribe an
appropriate form for recording such information.
“The fact that Tonche carried a farm labor contractor identification card
does not confer independent contractor status upon him for purposes of the
FLSA.
“Defendant testified as follows:
Q. When he showed you—he showed you his card, didn't he”
A-33
The only question in ascertaining Tonche’s status is whether
Tonche worked “for a fee” as required by section 2042(b).* The
term “fee” as used in the Act “includes any money or other
valuable consideration paid or promised to be paid to a person
for services as a farm labor contractor.” 7 U.S.C. § 2042(c). It
is undisputed that Tonche received consideration for his ser-
vices. The record evidence demonstrates that Tonche received
$1.65 an hour for his services in 1977 and $1.75 an hour in 1978
— the same amount that defendant paid almost all of his
hands. FLCRA regulations make clear that salary or wages
A. lasked him if he had a card to pay him with, and he said yes, and he
showed me this card.
Q. Okay. And that happened in both 1977 and 1978?
A. Yes, happened every year that he worked for me.
. * * . * *
Q. And you wrote down the ‘78 registration number inside the cover of
the book, isn't that correct?
A. Inside this?
Q. Yes... . Okay. And you did that when Mr. Tonche first started work-
ing for you in '78?
A. Well, that’s when he started working, I asked him if he had his card,
and he said, “Yes,” and that’s what we put down, was ‘78, because it
was ‘78.
Q. Okay. You wrote the registration number down?
A. Yes, I put this down here.
“When the district court denied plaintiffs’ motion for a judgment n.o.v., the
court stated that “(rjeasonable minds could have differed as to whether
Tonche’s compensation constituted a fee for recruiting and furnishing
migrant workers or a payment for services he performed as an hourly paid
laborer. The district court, however, erred in submitting the question of
Tonche’s status as a farm labor contractor to the jury. There was no unre-
solved issue of fact —it was undisputed that Tonche received consideration
for his services. Whether this consideration constituted “a fee” within the
statutory definition is a question of law. See Alvarez v. Joan of Arc, Inc.,
658 F.2d 1217, 1220-21 (7th Cir. 1981) (treating the fee issue as a question
of law); Marshall v. Coastal Growers Ass'n, 598 F.2d 521, 523-24 (9th Cir.
1979) (treating the fee issue as a question of law); Soliz v. Plunkett, 615
F.2d 272, 275 (5th Cir. 1980) (holding that the issue of whether the putative
farm labor contractor “furnished” migrant workers to the farmers was a
question of law).
A-34
suffice as a “fee” when paid to a person for services as a farm
labor contractor. 29 C.F.R. § 41.5 (1982). This Court has no
difficulty in viewing the consideration received by Tonche as a
“fee” for the management and supervision of the workers. The
record reveals no evidence of an agreement that Tonche’s
hourly wage was solely for chopping cotton; moreover, even
if Tonche’s hourly wage were viewed as compensation for
chopping, it would still constitute a “fee” within the meaning
of the Act. Tonche’s “chopping job” existed by virtue of his
furnishing a crew for defendant, i.e., Tonche furnished defen-
dant with a crew because of defendant's offer of a steady chop-
ping job for Tonche and his family. Tonche’s wages constituted
a “fee” for his services; Tonche was a farm labor contractor
within the meaning of the statute.
BIntentional Violation
[9] 7U.S.C. § 2050a(b) provides for either actual damages
or liquidated damages” of up to $500* for each intentional vio
“Indeed, defendant's argument that Tonche was paid an hourly wage for his
labor chopping cotton, not for furnishing defendant with migrant workers
to hoe the cotton, is reminiscent of his argument on the “employee” issue
under the FLSA claim. See supra, note 13. Surely Congress could not have
intended application of the FLCRA to depend on how the farmer charac-
terizes his agreement with the farm labor contractor. Such an interpreta-
tion would be inconsistent with the remedial nature of the Act. See Soliz,
615 F.2d at 275 (5th Cir. 1980) (stating that the “Act should be broadly con-
strued because it is remedial in nature”). Allowing compliance with the
Act to rest on the farmer's characterization of his agreement with the farm
labor contractor (he hired the farm labor contractor to perform a task, not
to furnish the workers necessary for the performance of the task) would
permit wholesale evasion of the Act.
Plaintiffs in the instant case have requested liquidated damages.
“There is some dispute among district courts as to whether a court must
award each plaintiff $500 per violation or may in its discretion award up to
$500 per violation. See Espinoza v. Stokely-Van Camp, Inc., 641 F.2d 535,
539 (7th Cir.), overruled, Alvarez v. Joan of Arc, Inc., 658 F.2d 1217, 1221
(7th Cir.), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033
(1981). The sounder position espoused by the Seventh Circuit in Joan of
Arc, 658 F.2d at 1224 is that § 2050a(b) permits a district court to award
liquidated damages of up to $500 for each violation of the Act.
A-35
lation of the Act.* The term “intentional” within this section
means “conscious or deliberate” and does not require a specific
intent to violate the Act. Joan of Arc, 658 F.2d at 12242° The
standard for an intentional violation has also been referred to
as “the common civil standard which holds a person liable for
the natural consequences of his or her acts.” DeLeon v. Rami-
rez, 465 F.Supp. 698, 705 (S.D.N.Y. 1979) (stating that the
courts have adopted this interpretation because of the reme-
dial purposes of the Act)..
Applying this standard of intentionality to the instant
cases, this Court concludes that defendant’s admission at trial
establishes that his violation of section 2050c (failure to main-
tain payroll records on plaintiffs) was intentional within the
meaning of section 2050a(b). In response to questions by
plaintiffs’ attorney, defendant admitted that in both 1977 and
1978 when Tonche started working for him, he asked Tonche if
Tonche had a card “to pay him with” and that Tonche showed
defendant his farm labor contractor identification card °
Defendant’s testimony establishes that he was aware of the
existence of a law requiring farm labor contractors to carry
identification cards in order to be paid. Under the intention-
ality standard of section 2050a(b) defendant is held liable for
the natural consequences of his acts. Defendant's own testi-
*7 U.S.C. § 2050a(b) provides in pertinent part as follows:
If the court finds that the respondent has intentionally violated any pro-
vision of this chapter or any regulation prescribed hereunder, it may
award damages up to and including an amount equal to the amount of
actual damages, or $500 for each violation, or other equitable relief.
“The Seventh Circuit in Joan of Arc upheld the district court's finding that
defendant's “harmless technical” violation of the Act fell within the mean-
ing of the term “intentional.” The defendant in that case was a farm labor
contractor who did not have a specific intent to violate the FLCRA. His
violation consisted of inadvertently not applying for registration with the
DOL until April 1978 although the DOL and the Texas Employment Com-
mission had earlier approved defendant's recruitment of migrant workers
which began in late 1977.
“See defendant's quoted testimony, supra, note 33.
A-36
mony reveals that his failure to keep payroll records on the
individual plaintiffs was intentional within the meaning of the
Act?
“Concluding that defendant's violation was intentional is especially appro-
priate in view of the fact that Tonche’s farm labor contractor activities
were performed exclusively for defendant. Allowing the farm operator to
“go untouched” in such circumstances “could lead to the full scale eviscer-
ation of the Act.” See DeLeon, 465 F.Supp. at 705 (involving a failure to
require that the farm labor contractor be validly registered).
Such a conclusion is also appropriate given that the recordkeeping obli-
gation imposed (by the 1974 amendments to the Act) on farmers who use
contractors was part of an attempt by the legislature to provide a more
effective enforcement mechanism for violations of the Act. See S.Rep. No.
1295, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad.News
6441, 6443 & 6445-46.
Furthermore, the standard this Court has adopted for an intentional
violation is particularly appropriate in light of the interrelationship
between the FLCRA and the FLSA —the former can be used to enforce
rights conferred by the latter:
In addition to helping the farmworker remedy FLCRA violations, the
FLCRA requirements aid the farm worker under other federal stat-
utes. For example, FLCRA interrelates with the Fair Labor Standards
Act (FLSA), 29 U.S.C. §§ 201-219 (1976), to provide important protec-
tions and remedies for farmworkers. Although FLSA requires all agri-
cultural employers to maintain payroll records showing the hours
worked and the wages paid, id § 211(c); Records To Be Kept By Employ-
ers, 29 C.F.R. § 16.33 (1980), it contains no private enforcement mech-
anism if the employer fails to maintain such records. Since workers
rarely keep similar records on their own, farmworker minimum wage
actions under FLSA § 206 usually dissolve into swearing matches in
which farmworkers are at a great disadvantage. FLCRA, however,
requires contractors and users of contractors to maintain the payroll
records prescribed by FLCRA itself and payroll records required by
any other federal statute 7 U.S.C. § 2050c (1976). Thus the FLCRA $500
penalty per violation can be used to address the failure to maintain
FLSA records. See, e.g., Cantu v. Owatonna Canning Co., 90 Lab.Cas.
€33,968 (D.Minn. 1980). An employer forced to maintain proper payroll
records is not likely to maintain records showing him to be guilty of min-
imum wage violations. Thus, he is deterred from committing FLSA vio-
lations. In this manner FLCRA functions to enforce rights created by,
but unenforceable under FLSA.
Note, A Defense of the Farm labor Contractor Registration Act, 59
Tex. L. Rev. 531, 5387 n. 61 (1981).
A-37
C. Conclusion
This Court has concluded that the record establishes as a
matter of law that defendant used a farm labor contractor,
that defendant violated the FLCRA by not maintaining pay-
roll records on plaintiffs, and that defendant’s violations were
intentional within the meaning of the Act. On remand, the dis-
trict court must determine the number of violations defendant
has committed,” and may, in its discretion, award each plain-
tiff liquidated damages of up to $500 per violation.”
This Court reverses and remands for proceedings not incon-
sistent with this opinion.
REVERSED AND REMANDED.
HIGGINBOTHAM, Circuit Judge, specially concurring:
I concur, but add this note, not for qualification but for
caveat. Our efforts to justify appellate review by attempting
to separate intertwined subsidiary facts and ultimate legal
conclusions inevitably cast surrealistic shadows. The exercise
can, and occasionally does, do little more than serve as a
covering cape for the exercise of the trial court function by an
appellate court. That transfer can frustrate assignments of
institutional responsibility and deny efficacy to the Seventh
Amendment.
I do not here need the comfort of the exercise. Genuinely
undisputed facts at trial permit no conclusion but that Manuel
Tonche was Ercell Givens’ employee, or that Givens’ conduct
was wilful under Coleman v. Jiffy June Farms, Inc., 458 F.2d
“Section 2050¢ requires defendant to maintain both FLCRA payroll records
and FLSA records. On remand, the district court must decide whether
defendant's failure to maintain these records constitutes one or more
violations.
“In deciding on the amount of liquidated damages to award per violation,
the district court should keep in mind that, although plaintiffs did not
prove out-of-pocket losses on their FLCRA claim, they were clearly pre)-
udiced by defendant's failure to maintain records in their ability to estab-
lish their FLSA wage claims.
A-38
1139 (5th Cir. 1971), cert. denied, 409 U.S. 948, 93 S.Ct. 292,
34 L.Ed.2d 219 (1972).
A-39
[U.S. COURT OF APPEALS FILED JUN 16 1983
GILBERT F. GANUCHEAU CLERK]
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 81-1520
PAULINA CASTILLO, ET AL., Plaintiffs-Appellants,
versus
ERCELL GIVENS, Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Texas
ON PETITION FOR REHEARING
(JUNE 16, 1983)
Before THORNBERRY, JOHNSON and HIBBINGO-
THAM, Circuit Judges.
PER CURIAM:
IT ISORDERED that the petition for rehearing filed in the
above entitled and numbered cause be and the same is hereby
denied.
ENTERED FOR THE COURT:
Amy Johnson
United States Circuit Judge
CLERK’S NOTE: SEE RULE 41 FRAP AND LOCAL
RULE 17 FOR STAY OF THE MANDATE
A-40
(U.S. DISTRICT COURT NORTHERN DISTRICT OF
TEXAS FILED JUN 19 1981 JOSEPH McELROY, JR.,
CLERK BY George Brookshea Deputy]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
CIVIL ACTION NO. CA-5-80-16
PAULINA CASTILLO, et al., Plaintiffs,
Vv
ERCELL GIVENS, Defendant.
JUDGMENT
The above case came on for trial before the court and a jury
on the 15th day of June, 1981 with all parties and attorneys
present. After hearing and considering the evidence, the
argument of counsel and the instructions of the court, the jury
did on this 19th day of June, 1981 return its verdict in open
court, and a decision having been reached.
It is Ordered, Adjudged and Decreed that the plaintiffs,
and each plaintiff who is a party to this suit, do have and
recover nothing of and from the defendant, Ercell Givens, and
that all relief prayed for by the plaintiffs is denied.
All costs are taxed against the plaintiffs.
The Clerk will furnish a copy hereof to each attorney.
ENTERED this 19th day of June, 1981.
HALBERT 0. WOODWARD
Chief Judge
Northern District of Texas
A-41
[U.S. DISTRICT COURT NORTHERN DISTRICT OF
TEXAS FILED OCT 7 1981 JOSEPH McELROY, JR.,
CLERK BY Kristy Chandler Deputy]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
CIVIL ACTION NO. CA-5-80-16
PAULINA CASTILLO, et al., Plaintiffs,
y
ERCELL GIVENS, Defendant.
ORDER
This case came on for trial before the court and a jury on the
15th day of June, 1981. On June 19, 1981 the jury returned its
verdict in open court and judgment in accordance with the
verdict was entered that plaintiffs recover nothing from the
defendant, Ercell Givens.
The plaintiffs have subsequently filed a motion to alter
judgment, for judgment notwithstanding the verdict and for
partial new trial. After considering this motion and the briefs
of counsel, the court enters the following order:
At the close of the testimony, plaintiffs moved for a directed
verdict on the ground that no fact issue existed with respect to
any of the issues submitted to the jury. Plaintiffs argue that
since they were entitled to a directed verdict, the jury’s find-
ings against them should be set aside, judgment entered for
the plaintiffs and damages awarded accordingly. With respect
to the issues concerning the Fair Labor Contractor Registra-
A-42
tion Act (FLCRA), 7 U.S.C. §§ 2041-55, plaintiffs assert the
right to a jury trial did not exist, and the court should set aside
the answers to such issues and enter judgment for the plain-
tiffs. Alternatively, plaintiffs request a new trial on the
amount of damages. This partial new trial would be in the
event the court could not grant judgment in accordance with
the minimum number of hours which plaintiffs claim to have
worked.
FAIR LABOR STANDARDS ACT
In order to prevail under the Fair Labor Standards Act
(FLSA), 29 U.S.C. §§ 201, et seq., plaintiffs were required to
show by a preponderance of the evidence that during the 1977
and 1978 agricultural seasons 1) plaintiffs were engaged in the
production of goods for commerce, 2) plaintiffs were “employ-
ees” of the defendant Ercell Givens, and 3) defendant failed to
pay the plaintiffs the minimum wage required by law. The
jury answered the special issues pertaining to the require-
ments of the FLSA and determined that plaintiffs were not
engaged in the production of goods for commerce (Special
Issue 1) and plaintiffs were not employees of Ercell Givens
(Special Issue 2).
It appears that the jury’s finding on special issue number
one relating to the production of goods for commerce is not
supported by the evidence. However, even if plaintiffs prevail
on this issue, there is sufficient evidence to support the jury’s
finding that plaintiffs were not employees of the defendant.
Accordingly, this finding would preclude plaintiffs’ recovery
under the FLSA.
The evidence presented by each party was conflicting par-
ticularly in regard to the nature and degree of control of
defendant over the plaintiffs and whether the plaintiffs
depended on the defendant or Manuel Tonche for their liveli-
hood. Because such evidence was of the quality and weight
that reasonable and fair-minded men in the exercise of impar-
A-43
tial judgment could have reached different conclusions, the
issue was properly submitted to the jury. See Boeing Co. v.
Shipman, 411 F.2d 365, 374 (5th Cir. 1969). Since it was appro-
priately within the jury’s province to determine the employ-
ment issue and since there was sufficient evidence to support
their conclusion, this court must uphold the finding that plain-
tiffs were not employees of the defendant.
FAIR LABOR CONTRACTOR REGISTRATION ACT
Plaintiffs first contend that these particular issues should
have been determined by the Court contending that the right
of jury trial did not attach. Although the plaintiffs sought only
the liquidated damages of $500.00 per violation provided by
the FLCRA as opposed to proving actual damages, various
questions of fact existed in deciding the liability issues.
The FLCRA provides that any person furnished with
migrant workers who are paid by a farm labor contractor shall
maintain certain records. The FLCRA further defines
“migrant workers” as individuals whose primary employment
is agriculture or who performed agricultural labor on a sea-
sonal or other temporary basis. A “farm labor contractor” is
defined as a person, who for a fee, either for himself or on
behalf of another person recruits, solicits, hires, furnishes, or
transports migrant workers for agricultural employment. The
term “fee” includes any money or other valuable consideration
paid or promised to be paid.
As demonstrated by the above definitions, the determina-
tion of whether the FLCRA applied to these plaintiffs
required the resolution of numerous questions of fact. There-
fore, the issues were properly submitted to the jury as the
finder of fact.
Plaintiffs further contend that the FLCRA should have
been decided in their favor as a matter of law. The jury's
answers to the relevant issues were that plaintiffs were not
migrant workers (Special Issue 6) and that Manuel Tonche
A-44
was not a farm labor contractor (Special Issue 7). It appears
that the evidence concerning plaintiffs’ status as migrant
workers did not support the jury’s answer to special issue six.
However, the evidence does support the answer in special
issue seven and such finding would prevent recovery under
the FLCRA.
As defined above, a farm labor contractor is one who for a
fee recruits migrant workers. The only evidence of compen-
sation paid to Manuel Tonche was that he received the identi-
cal hourly wage paid to the other plaintiffs, and there was no
evidence that he received any other compensation or fee, but
rather that the compensation he received was not as a fee for
recruiting and furnishing migrant workers, but was payment
for the services he performed as an hourly paid laborer. Rea-
sonable minds could have differed as to whether this compen-
sation was a “fee” as defined in the Act and thus, submission
of this issue to the jury was warranted. Likewise, there was
substantial evidence to support the jury’s ultimate finding
that Manuel Tonche was not a farm labor contractor.
Therefore, plaintiffs’ motion to alter judgment, for judg-
ment notwithstanding the verdict, and for partial new trial is
DENIED. The judgment entered June 19, 1981 will stand as
the judgment of this court.
The Clerk will furnish a copy hereof to each attorney.
ENTERED this 7th day of October, 1981.
HALBERT 0. WOODWARD
Chief Judge
Northern District of Texas
29 U.S.C. § 203. Definitions
As used in this chapter —
(d) “Employer” includes any person acting directly or
indirectly in the interest of an employer in relation to an
A-45
employee and includes a public agency, but does not
include any labor organization (other than when acting as
an employer) or anyone acting in the capacity of officer or
agent of such labor organizations.
(e)(1) Except as provided in paragraphs (2) and (3),
the term “employee” means any individual employed by
an employer.
29 U.S.C. § 206. Minimum wage
Employees engaged in commerce; home workers in Puerto
Rico and Virgin Islands; employees in American Samoa;
seamen on American vessels; agricultural employees
(a) Every employer shall pay to each of his employees
who in any workweek is engaged in commerce or in the
production of goods for commerce, or is employed in an
enterprise engaged in commerce or in the production of
goods for commerce, wages at the following rates:
(1) not less than $2.65 an hour during the year
beginning January 1, 1978, not less than $2.90 an
hour during the year beginning January 1, 1979, not
less than $3.10 an hour during the year beginning
January 1, 1980, and not less than $3.35 an hour
after December 31, 1980, except as otherwise pro-
vided in this section;
(2) if such employee is a home worker in Puerto
Rico or the Virgin Islands, not less than the mini-
mum piece rate prescribed by regulation or order;
or, if no such minimum piece rate is in effect, any
piece rate adopted by such employer which shall
yield, to the proportion or class of employees pre-
scribed by regulation or order, not less than the
applicable minimum hourly wage rate. Such mini-
mum piece rates or employer piece rates shall be
commensurate with, and shall be paid in lieu of, the
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minimum hourly wage rate applicable under the
provisions of this section. The Administrator, or his
authorized representative, shall have power to
make such regulations or orders as are necessary or
appropriate to carry out any of the provisions of this
paragraph, including the power without limiting the
generality of the foregoing, to define any operation
or occupation which is performed by such home
work employees in Puerto Rico or the Virgin
Islands; to establish minimum piece rates for any
operation or occupation so defined; to prescribe the
method and procedure for ascertaining and promul-
gating minimum piece rates; to prescribe standards
for employer piece rates, including the proportion
or class of employees who shall receive not less than
the minimum hourly wage rate; to define the term
“home worker”; and to prescribe the conditions
under which employers, agents, contractors, and
subcontractors shall cause goods to be produced by
home workers;
(3) if such employee is employed in American
Samoa, in lieu of the rate or rates provided by this
subsection or subsection (b) of this section, not less
than the applicable rate established by the Secre-
tary of Labor in accordance with recommendations
of a special industry committee or committees which
he shall appoint in the same manner and pursuant to
the same provisions as are applicable to the special
industry committees provided for Puerto Rico and
the Virgin Islands by this chapter as amended from
time to time. Each such committee shall have the
same powers and duties and shall apply the same
standards with respect to the application of the pro-
visions of this chapter to employees employed in
American Samoa as pertain to special industry com-
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mittees established under section 205 of this title
with respect to employees employed in Puerto Rico
or the Virgin Islands. The minimum wage rate thus
established shall not exceed the rate prescribed in
paragraph (1) of this subsection;
(4) if such employee is employed as a seaman on
an American vessel, not less than the rate which will
provide to the employee, for the period covered by
the wage payment, wages equal to compensation at
the hourly rate prescribed by paragraphs (1) of this
subsection for all hours during such period when he
was actually on duty (including periods aboard ship
when the employee was on watch or was, at the
direction of a superior officer, performing work or
standing by, but not including off-duty periods
which are provided pursuant to the employment
agreement); or
(5) if such employee is employed in agriculture,
not less than the minimum wage rate in effect under
paragraph (1) after December 31, 1977.
29 U.S.C. § 211. Investigations, inspections, records,
and homework regulations
(c) Every employer subject to any provision of this
chapter or of any order issued under this chapter shall
make, keep, and preserve such records of the persons
employed by him and of the wages, hours, and other con-
ditions and practices of employment maintained by him,
and shall preserve such records for such periods of time,
and shall make such reports therefrom to the Adminis-
trator as he shall prescribe by regulation or order as nec-
essary or appropriate for the enforcement of the provi-
sions of this chapter or the regulations or orders
thereunder.
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29 U.S.C. § 255. Statute of limitations
Any action commenced on or after May 14, 1947, to enforce
any cause of action for unpaid minimum wages, unpaid over-
time compensation, or liquidated damages, under the Fair
Labor Standards Act of 1938, as amended, the Walsh-Healey
Act, or the Bacon-Davis Act —
(a) if the cause of action accrues on or after May 14,
1947 — may be commenced within two years after the
cause of action accrued, and every such action shall be
forever barred unless commenced within two years after
the cause of action accrued, except that a cause of action
arising out of a willful violation may be commenced
within three years after the cause of action accrued.
7 U.S.C. § 2042. Definitions
As used in this chapter —
(b) The term “farm labor contractor” means any per-
son, who, for a fee, either for himself or on behalf of
another person, recruits, solicits, hires, furnishes, or
transports ten or more migrant workers (excluding
members of his immediate family) at any one time in any
calendar year for interstate agricultural employment.
Such term shall not include (1) any nonprofit charitable
organization, public or nonprofit private educational
institution, or similar organization; (2) any farmer, pro-
cessor, canner, ginner, packing shed operator, or nurs-
eryman who engages in any such activity for the purpose
of supplying migrant workers solely for his own opera-
tion; (3) any full-time or regular employee of any entity
referred to in (1) or (2) above; or (4) any person who
engages in any such activity for the purpose of obtaining
migrant workers of any foreign nation for employment in
the United States, if the employment of such workers is
subject to (A) an agreement between the United States
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and such foreign nation, or (B) an arrangement with the
government of any foreign nation under which written
contracts for the employment of such workers are pro-
vided for and the enforcement thereof is provided for in
the United States by an instrumentality of such foreign
nation.
(c) The term “fee” includes any money or other valu-
able consideration paid or promised to be paid to a person
for services as a farm labor contractor.
7 U.S.C. § 2045. Obligations and prohibitions
Every farm labor contractor shall —
(e) in the event he pays migrant workers engaged in
interstate agricultural employment, either on his own
behalf or on behalf of another person, keep payroll rec-
ords which shall show for each worker total earnings in
each payroll period, all withholdings from wages, and net
earnings. In addition, for workers employed on a time
basis, the number of units of time employed and the rate
per unit of time shall be recorded on the payroll records,
and for workers employed on a piece rate basis, the num-
ber of units of work performed and the rate per unit shall
be recorded on such records. In addition he shall provide
to each migrant worker engaged in interstate agricul-
tural employment with whom he deals in a capacity as a
farm labor contractor a statement of all sums paid to him
(including sums received on behalf of such migrant
worker) on account of the labor of such migrant worker.
He shall also provide each such worker with an itemized
statement showing all sums withheld by him from the
amount he received on account of the labor of such
worker, and the purpose for which withheld. The Secre-
tary may prescribe an appropriate form for recording
such information.
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7 U.S.C. § 2048. Penalties
Any farm labor contractor or employee thereof who will-
fully and knowingly violates any provision of this chapter or
any regulation prescribed hereunder shall be fined not more
than $500.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.