Amicus Curiae Brief — Adams Fruit Co. v. Barrett

--—

Surreme Court, US,

5 re j L be D

No. 88-2035 JEC 15 3383

ee

CLERK

IN THE _

Supreme Court of the United States

OCTOBER TERM, 1989

ADAMS Fruit Company, INc., a Florida Corporation,

Petitioner,

V.

RAMSFORD BARRETT ef al..

Respondents.

On a Writ of Certiorari to the United States Court of

Appeals for the Eleventh Circuit

Brief of Congressman William D. Ford

and the Washington Lawyers’ Committee

for Civil Rights Under Law as

Amici Curiae in Support of Respondents

MELVIN C. GaRBOW

Counsel of Record

and

MELVIN SPAETH

NEIL M. GoopMAN

HILLARD M. STERLING

ARNOLD & PORTER

1200 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 872-6700

Of Counsel

December 1989

eee

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

.o_

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ............cccceceees

STATEMENT OF THE CASE ..........ccccccccccssssssessesees

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

I.

I].

CONGRESS INTENDED TO REMEDY TFE

HISTORIC EXPLOITATION OF FARM WORK-

ERS BY PROVIDING THEM IN AWPA WITH

AN EFFECTIVE PRIVATE RIGHT TO FED-

ERAL JUDICIAL aELICr enneueesensepseenensuseooees

A. Congress’ in AWPA Was To

Prevent the tinued Exploitation of

Farm Workers by Giving Them a Private

Right To Obtain F Court Remedies

B. Did Not Intend To Subordinate

the Remedies Available by Private Action

Under AWPA to the Limited Benefits

Sometimes Available Under Workers’

Compensation Schemes of the States ....

C. In the Rare Instance When Congress In-

ee © Se! Se ae

to State Workers’

Laws, It Does So in Unmistakable Lan-

guage Nowhere Found in AWPA ieinsennsse

D. State Workers’ Benefits,

Where Are A at All to Farm

Workers, Lil Par Short of the Remedies

Congress Intended To Provide in AWPA

FLORIDA’S WORKERS’ COMPENSATION ExX-

CLUSIVITY PROVISION DOES NOT PUR-

PORT TO BAR A PRIVATE ACTION

BROUGHT UNDER AWPA. ...........ccccccseseseeeeees

~- wo wo

1]

14

15

18

Il.

‘i

A. State Exclusivity Provisions Do Not Pre-

clude Employees from Recovering from

GCther FEED cence

B. Florida’s Exclusivity Provision, Even

wie ney eta. Be

RESPONDENTS ARE ENTITLED TO REME-

DIES UNDER BOTH THE STATE AND FED-

ERAL REGIMES. IN THE EVENT THE

COURT CONSTRUES THE STATE LAW TO

APPLY HERE, THE STATE EXCLUSIVE

REMEDY PROVISION CLASHES WITH AWPA

AND MUST BE PREEMPTED .................+--+++

. THE FOURTH CIRCUIT’S DECISION IN RO-

MAN V. SUNNY SLOPE FARMS, INC. WAS

WRONG IN FAILING TO FOLLOW THE RULE

THAT STATE LAW IMMUNITY ONLY OP-

ERATES IN THE SPHERE OF STATE LAW

oF

ORCL IIUE ..ccccccesccccccecsesecensccesnsssnssnsesnsnensneiensunnts

18

S &

TABLE OF AUTHORITIES

Cases: Page

Aronson v. Quick Point Pencil Co., 440 U.S. 257

ia sciccccescncnstsecenecnsccscesececces 24

Avondale Marine Ways, Inc. v. Henderson, 346 U.S.

TR 17

Barrett v. Adams Fruit Company, Inc., No. 86-

1301-Civ-T-17 (M.D. Fila. » ae, 1987) ......... 3

Barrett v. Adams Fruit Company, Inc., 867 F.2d

I sa ceseeeerecs 3,11

Biggs v. Norfolk Dredging Co., 360 F.2d 360 (4th

a ccssennseecs 19

Bonito Boats, Inc. v. Thundercraft Boats, Inc., 109

sas sscceansencccecs 24

Byrd v. Richardson-Greenshields Securities, Inc., 14

Fla. L. Weekly 549 (Fla. Sup. Ct. Oct. 26,

cc eccencennne 4,23

Calbeck v. Travelers Insurance Co., 370 U.S. 114

SLT 17,19,26

Davis v. Department of Labor and Industries, 317

LE 17

DeCancino v. Eastern Air Lines, 239 So. 2d 15

SD | |) Se ee 4,22

Ferri v. Ackerman, 444 U.S. 193, 198 (1979)....... 28

—_ Tiger Lines, Inc. v. Landy, 370 F.2d 46 (9th

I icartininecicccsersssssscorensesesescoees 19

Follese v. Eastern Air Lines, 271 N.W.2d 824

cc iercneaccnnessdneseseconceses 22

Garvin v. Alumazx of South Carolina, 787 F.2d 910

Ee 26,28,29

Grant Smith-Porter Ship Co. v. Rohde, 257 U.S.

i eiiidhrininatctinececestsatscncsecscsenescooes 17

Grice v. Suwanee Lumber Manufacturing Co., 113

So. 2d 742 (Fla. Dist. Ct. App. 1959) ............ 11

iv

Table of Authorities Continued

Hahn v. Ross Island Sand & Gravel Co., 358 U.S.

BAR COD ccccccacescescssctinnassseimninitiianiesinmmationnes 17,29

Hutchings v. Erie City and County Library Board

of Directors, 516 F. Supp. 1265 (W.D. Pa.

BINED «etccncsnecnccnnsnncdinsecsinsnltantistinintitaimstatenioiiiansies 19

Industrial Comm. of Wisconsin v. McCartin, 330

CE GE CIGD cececsnscstnsapneiensenecnsesnannntiintenansens 19,20

Johansen v. United States, 343 U.S. 427 (1952) ... 27

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149

CRIED cccensnssetnmnstsinsmnectemnrbiniiianncegsaianeniennene 17

Landry v. Carlson Mooring Service, 643 F.2d 1080

GT GI. TITTY cenccctccecesccccenesnncnntnneienisnsiocstednnens 23

Nacirema Operating Co. v. Johnson, 396 U.S. 212

CIID ccecinsnssscsncsesccsncsepmmnsacnntensndginngiemmsninimusess: 17

Patterson v. United States, 359 U.S. 495 (1959) ... 27

Roberts v. City of Plantation, 558 F.2d 750 (5th

Cle, FTE cnnictcnnntccnisnnenstinssinsestnainenitatbinpabiinnaens 19

Rockport Yacht & Supply Co., Inc. v. Hollis, 371

F. Supp. 1229 (S.D. Tex. 1973) ........ccceceeeeeees 19

Roman v. Sunny Slope Farms, 817 F.2d 1116 (4th

GOR. BIIOD ececcscsctccunsesnsnsenncssnntensennnianibaneninnsen 26,28,29

Rosa v. Cantrell, 705 F.2d 1208 (10th Cir. 1982) . 19

Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225

TEI ccncoceceosssacemsesonsnieneesinidatenammasanaminninescbnaass 24

Southern Pacific Co. v. Jensen, 244 U.S. 205

EIT cncosssssnsnentnesnensbbnonnsiiiidineinmnniadiatdinnmmnetbnascnn 17

Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715

ETE coscexsennsecsninnssnibeinsnnnbigsiosaunepeintintiongnnians passim

Thibodaux v. Atlantic Richfield Co., 580 F.2d 841

8 nen 19

Thomas v. Washington Gas Light Co., 448 U.S. 261

CRED cnccccccsescoscscceneccasssenssscunsenevssecscssssecssssnesnes passim

United States v. Demko, 385 U.S. 149 (1966) ...... passim

Table of Authorities Continued

Page

Washington v. W.C. Dawson & Co., 264 U.S.

SEITE -sntindsincnasabeiiciesbnibeincinioniail : ceased vida 17

Western Fuel Co. v. Garcia, 257 U.S. 2383

SUI ‘Aichcsicesmichieailaenpsnetcaiinnadinsidtatinadstabds banat iakicisiniin 17

Statutes:

Black Lung Benefits Act, 30 U.S.C. § 901 et

GE). ctacascescsscccesssensensnccntnocnsanteussstocseeseiesion cocseese 15

Defense Base Act, 42 U.S.C. §§ 1651-1654 ........... 18

Farm Labor Contractor Registration Act, Pub. L.

No. 88-582, 78 Stat. 920 (1968) .........ceeeee. passim

Federal Employees Compensation Act, 5 U.S.C.

Oy Mr I: ieee 18,27

Federal Employees Liability Act, 15 U.S.C. § 56 et

GE <ccntsccsnssstecensssessnsectesesessnducecnisesetiounininencssances 18

Federal Tort Claims Act, 28 U.S.C. § 1346(b) ...... 27

SUD Bh, GB TET. BID cocseiccceceecsemiccceseeneccseseeee 18

Longshore and Harbor Workers’ Com tion Act

33 U.S.C. §901 et seg. ..........00 - raion ae . passim

Migrant and Seasonal Agricultural Worker Protec-

tion Act, Pub. L. No. 97-470, 96 Stat. 2584

(1983) (codified at 29 U.S.C. §§ 1801-1872) .... passim

Rehabilitation Act of 1978, 29 U.S.C. § 794 ......... 18

Title VII of the Civil Rights Act of 1964 ............. 23

War Hazard Compensation Act, 42 U.S.C. § 1701

GE GD ccessstcsnsaccsnssnsnscoscsennsnsecsssetinisensstntsntvasemens 14,15

Pe Se I iinteiitilicsderaiibiiieiititiilecnaitiiitnitittiei cig ies 26,27

Be a iidiciciericinntancicreinsiinineitiintetstetentcenanilaes 23

Table of Authorities Continued

Page

ae I seccencncemesensenessmesciitionsemenamn 9

|) | eT 9

FATT 9,12,13

I I i epctiaatemnnnmniientenimnenbnnniain 13

I I sa pcerseprnnenteiedenoninpsnntcnsiannniens 3

Sap Wal IIE css cesnenspscnsseumsenensenssenesenndéeutoonenacs 10

Be Es SEED ctvenepnccencecsnsasastocnecesseseosoenentensnavece 15

BD BD isc. crsneenrenepsiinnsniniumeipetinnniannesiiaen 15

BD Ps Se I dcccteesecnsencsseconenncnminsrecsennesansecnsncevenss 15

Fla. Stat. Ann. § 440.02(13\cX2) (West 1981) ....... 16

Fla. Stat. Ann. § 440.09(1) (West 1981) ................ 21-22

S.D. Codified Laws Ann. § 62-3-16 (1989) ............. 16

Nev. Rev. Stat. § 616.525 (1979) .............cccseceeseeees 21

Wyo. Stat. § 27-14-103(d)(viii) (1989) .........cceeseee 16

Legislative Materials:

Farm Labor Contractor Registration Act Amend-

ments of 1968: Hearings Before the Subcomm.

on Agricultural Labor o Comm. on Edu-

cation and Labor, 93d Cong., 1st Sess. 112

COTE siesteaneenninietiavienietiiaidadeapeiidnainvemianneeee 7-8

Farm Labor Contractor Registration Act Amend-

ments of 1974, Pub. L. No. 93-518, 1974 U.S.

Code Cong. & Admin. News 1899 .............-.-+. 8

Hearings on the Migrant and Seasonal Agricultural

Worker Protection Act: —— on H.R. 7102

Before the Subcomm. on Labor Standards of the

House Comm. on Education and Labor, 97th

Cong., 2d Sess. 87-106 (1982) ..........csscseseeeeees )

H.R. Rep. No. 885, 97th Cong., 2d Sess. 21

GTEEEED : nssesuisnrsputscneussioctbearsuinsniiiasipnienaverecsrsesenee. 10

H.R. Rep. No. 1024, 93d Cong., 2d Sess. 5

SEITE cneonedussnendiubuniidenmubeammnetnnnidnbineuadiintedssectomeces 6,7,8

ne

vii

Table of Authorities Continued

H.R. Rep. No. 1493, 98d Cong., 2d Sess. 11

GRP . seiensnsishcciciainnnsiiansiattininimsimmnttiidnadtiianapanmnnees 8

H.R. Rep. No. 10631(7), 95th Cong., 2d Sess., re-

printed in Farm Labor Contractor Registra-

tion Act: Hearings on H.R. 8282 and Other

Bills Before the Subcomm. on Economic Op-

portunity of the Comm. on Education and La-

bor, 95th Cong., 2d Sess. 4 (1978) ............000. 12

S. Rep. No. 202, 88th Cong., 2d Sess. 2 (1963) ... 5

S. Rep. No. 1206, 93d Cong., 2d Sess. 3 (1974)... 7,8

S. Rep. No. 1295, 98d Cong., 2d Sess. 3 (1974) ... 7

119 Cong. Rec. H3447 (daily ed. May 8, 1973) .... 6,7

120 Cong. Rec. S5467 (daily ed. Apr. 9, 1974) ..... 6-7,7

120 Cong. Rec. $18130 (daily ed. Oct. 3, 1974)... 8

128 Cong. Rec. H10456 (daily ed. Dec. 20, 1982) . 10

128 Cong. Rec. S15565 (daily ed. Dec. 18, 1982) . 10

Miscellaneous:

A. Larson, The Law of Workmen’s Compensation

CECE NR ee ae 15,16,27

SP CE CIID sincnsticcsscesenonisarstegseiuenmenateentin 13-14

INTEREST OF THE AMICI CURIAE

Congressman William D. Ford is the ranking member

of the Committee on Education and Labor of the United

States House of Representatives. He chaired the House

Subcommittee on Agricultural Labor from 1973-1977. He

was the author and floor manager of the 1974 Amerd-

ments to the Farm Labor Contractor Registrat..n Act

(““FLCRA”) which created a private right of action for

farm workers. In 1983, he co-sponsored the bill which be-

came the Migrant and Seasonal Agricultural Worker Pro-

tection Act (“AWPA’’) and was one of the key House

members who secured the enactinent of the bill. He has

a keen interest in the proper interpretation and enforce-

ment of the remedia! provisions of AWPA.

In addition to his work on FLCRA and AWPA, Con-

gressman Ford has been active in shaping every other

piece of labor legislation affecting migrant and seasonal

agricultural workers since 1973, including amendments to

the Fair Labor Standards Act, the Immigration Reform

and Control] Act and the Job Training Partnership Act.

Congressman Ford has particularly worked to secure

proper education of the children of migrant farm workers.

Since 1978, he has served as Chairman of the Interstate

Migrant Education Council and is a member of the Na-

tional Commission on Migrant Education. Congressman

Ford was instrumental in the establishment of the Office

of Migrant Education in the United States Department of

Education.

The Washington Lawyers’ Committee for Civil Rights

Under Law was established in 1968 by a group of law

firms in response to the racial disturbances that had

erupted in Washington, D.C. and many other cities. Its

goal then, as today, is to provide high quality pro bono

legal services to victims of discrimination and poverty in

the Washington community. Over the years, the Commit-

tee has participated in more than 2,000 cases of civil rights

advocacy on the basis of ntributed services of the private

bar.

The defense of farm worker rights has been an impor-

tant program for the Committee. The Committee has fre-

quently mobilized legal resources to aid farm workers

working in the fields of Maryland, Virginia, and West Vir-

ginia. The preservation of farm workers’ rights to bring

private actions to secure the protection of AWPA is a

cause to which the Committee is committed.

STATEMENT OF THE CASE

Plaintiffs are migrant and seasonal farm workers under

the Migrant and Seasonal Agricultural Worker Protection

Act, Pub. L. No. 97-470, 96 Stat. 2584 (1983) (codified at

29 U.S.C. §§ 1801-1872) (“AWPA”’). They have sought re-

lief under the private remedy provisions of Section 1854

for injuries caused by defendant’s intentional violations of

the Act.

Defendant employed plaintiffs to harvest oranges in cen-

tral Florida in early 1985. (J.A. 4) On the morning of May

8, defendant was transporting plaintiffs and nine other

workers to defendant’s worksite in a van owned by

defendant. (J.A. 5) Contrary to the provisions of AWPA

concerning vehicle safety and the regulations promulgated

under AWPA to protect migrant and seasonal farm work-

ers from injury, defendant did not provide seat belts, did

not provide each worker with a seat, loaded nineteen per-

sons on board even though the van had a maximum ca-

pacity of but twelve, and failed to secure cargo

appropriately. (J.A. 5-8) During the trip, a tire blew out;

the overloaded van ran off the highway and overturned.

(J.A. 6) Plaintiffs suffered serious permanent physical in-

juries. Jd.

Plaintiffs received limited workers’ compensation bene-

fits under the Florida workers’ compensation law for their

diminished capacity to work, in accordance with the sched-

ules contained in the law. (J.A. 11-12) Plaintiffs thereafter

filed suit under AWPA in the United States District Court

for the Middle District of Florida to recover their actual

damages. The court granted defendant partial summary

judgment with respect to the plaintiffs’ claims for damages

caused by defendant’s intentional violations of the motor

vehicle safety provisions of AWPA. (J.A. 20) The court

(Kovachevich, J.) ruled that the workers’ compensation

benefits provided pursuant to the Florida law constituted,

by reason of the state exclusivity provision in the state

statute, the exclusive remedy for plaintiffs’ injuries. Bar-

rett v. Adams Fruit Company, Inc., No. 86-1301-Civ.-T-17

(M.D. Fla. Oct. 29, 1987).

After settlement of certain other causes of action alleged

by plaintiffs under AWPA, the court entered judgment for

defendant and plaintiffs appealed the summary judgment

order. The Court of Appeals for the Eleventh Circuit re-

versed. Barrett v. Adams Fruit Company, Inc., 867 F.2d

1305 (11th Cir. 1989). After reviewing the legislative his-

tory of AWPA, the court held that the private remedy

provided by AWPA for actual damages resulting from in-

tentional violations of that Act, 29 U.S.C. § 1854,

preempted ‘he exclusive remedy provisions of the Florida

law. 867 F.2d at 1310.

SUMMARY OF ARGUMENT

In enacting AWPA, Congress determined that the best

means for effectively protecting migrant and seasonal farm

workers from a catalogue of shocking abuses and for en-

forcing AWPA lay in empowering farm workers on their

own behalf to obtain damage and injunctive remedies from

the federal courts. Congress did not intend to subordinate

these AWPA remedies to the limited workers’ compen-

sation benefits available to some injured farm workers un-

der the laws of some of the states. Congress’ references

in AWPA to workers’ compensation insurance_merely de-

scribe a means for coordinating benefits between types of

insurance required by the Act for the protection of farm

workers.

This Court has ruled that exclusive remedy provisions

of state workers’ compensation statutes are limited in ef-

fect only to bar supplemental remedies under the laws of

the state of enactment and do not bar awards of supple-

mental] benefits to injured workers under the laws of other

jurisdictions, either under the laws of other states, or as

in the instant case, under laws of the United States.

Thomas v. Washington Gas Light Co., 448 U.S. 261, 286

(1980). The Florida Supreme Court has construed the Flor-

ida workers’ compensation statute in consonance with that

ruling. See Byrd v. Richardson-Greenshields Securities,

Inc., 14 Fla. L. Weekly 549 (Fla. Sup. Ct. Oct. 26, 1989);

DeCancino v. Eastern Air Lines, 239 So. 2d, 15, 17 (Fla.

1970). Thus, the exclusive remedy provision of the Florida

law does not apply in the instant case.

If this Court should determine that the exclusive remedy

provision of the Florida law applies herein, then that pro-

vision stands as an obstacle to the accomplishment of the

full purposes of Congress in AWPA and the Court should

‘“pre-empt the state compensation exclusivity clause.”’ Sun

Ship, Inc., v. Pennsylvania, 447 U.S. 715, 724 n.6 (1980).

ARGUMENT

I. CONGRESS INTENDED TO REMEDY THE HISTORIC

EXPLOITATION OF FARM WORKERS BY PROVIDING

THEM IN AWPA WITH AN EFFECTIVE PRIVATE

RIGHT TO FEDERAL JUDICIAL RELIEF

A. Congress’ Purpose in AWPA Was To Prevent the

Continued Exploitation of Farm Workers by Giv-

ing Them a Private Right To Obtain Federal Court

Remedies for Violations of the Act

In the early 1960s, concerned about the shameful ex-

ploitation of migrant and seasonal farm workers, Congress

undertook a comprehensive investigation of agricultural

employment practices. The focus of this investigation was

the mistreatment of farm workers by farm labor contrac-

tors or “crew leaders,’ who served as liaisons between

the employers and the farm workers. The crew leaders

organized groups of farm workers, contacted the employ-

ers, transported the farm workers to the farms, supervised

them while they worked, and paid their wages. Thus, the

crew leader was “the individual who ha[d] the most con-

tinuing relationship with... migrant workers.”’ S. Rep.

No. 202, 88th Cong., 2d Sess. 2 (1963).

Department of Labor surveys, conducted in 1960 and

1962, catalogued a variety of crew leader abuses of the

farm workers: crew leaders wrongfully pocketed transpor-

tation money advanced by employers and deducted from

workers’ earnings; they failed to return workers to their

homes; they misrepresented the nature of jobs for which

workers were hired; they grossly overstated the wages

that farm workers would earn; and they unjustly misap-

propriated the workers’ meager salaries by ‘“‘colleciing

wages from employers but abandoning workers without

payment”’ and “overcharging for groceries or meals.”’ /d.

at 5.

Congress responded in 1963 by enacting the Farm Labor

Contractor Registration Act, Pub. L. No. 88-582, 78 Stat.

920 (1963) (““FLCRA”). This statute focused on the role

of crew leaders and required crew leaders to register with

the Secretary of Labor. § 4. To obtain registration, the

crew leaders had to: (1) attest that they would abide by

standards of conduct prescribed in the Act; (2) file proof

that they had secured insurance for personal injury and

property damage liability arising out of the transportation

of migrant workers; and (3) file sets of their fingerprints.

§ 5. FLCRA also required crew leaders to disclose truth-

fully to workers the location and nature of the crops to

be harvested, the transportation, housing, insurance, and

wages that would be provided, and the charges crew lead-

ers would deduct for their services. § 6(b).

Only the Secretary of Labor could enforce the crew leader

registration mechanism. FLCRA gave farm workers no pri-

vate remedies.

In the early 1970s, testimony presented to Congress

evidenced that the Department of Labor was not enforcing

FLCRA for the protection of migrant farm workers. Rep-

resentative William D. Ford, Chairman of the Subcom-

mittee on Agricultural Labor of the House of

Representatives, informed the House that, despite FLCRA,

crew leaders were continuing to “exploit their crews.”’

Crew leaders were: “transport{ing] them in unsafe vehi-

cles,” ‘‘fail[ing] to furnish the contemplated housing,” “‘ex-

ploit{ing] the worker in the sale of food,” “withhold[ing}

for their own profit part of the promised wage,” and ‘ ‘traf-

fick[ing] in marijuana, bootleg whiskey or prostitution.”

119 Cong. Rec. H3447 (daily ed. May 8, 1973).

The House Committee on Education and Labor heard

“complaints from migrants who alleged that they were

being cheated out of their wages, overcharged for the food

furnished, and physically assaulted.” In addition, the Com-

mittee was overcome with examples of “misleading re-

cruitment practices.’’ Indeed, one crew leader

acknowledged that “‘he was unaware of any contractor who

did not give false or misleading information to migrants

in recruiting.”” H.R. Rep. No. 1024, 93d Cong., 2d Sess.

5 (1974) (emphasis in original).

The Senate was advised that vehicles carrying farm

workers were “‘mechanically unsafe” and “‘overcrowded;”

that there were “several instances [of] conditions that fit

tections of any American worker.”’ 120 Cong. Rec. $5467

we

a oe

(daily ed. Apr. 9, 1974) (statement of Senator Edward

Kennedy) (emphasis supplied).

There was widespread congressional agreement that

“many of the abuses which were the subject of the 1963

legislation ha[d] continued unabated.”” H.R. Rep. No. 1024

at 5. “Noncompliance by those whose activities the Act

were intended to regulate ha[d] become the rule rather

than the exception.”” S. Rep. No. 1206, 93d Cong., 2d Sess.

3 (1974).

Congress repeatedly observed that Department of Labor

enforcement of FLCRA had been ineffective, in part be-

cause of “the Department’s shortage of adequate man-

power to police the Act.”” H.R. Rep. No. 1024 at 6. “The

field staff of the Labor Department’s Farm Labor Contract

Registration Section was limited in 1968 to five profes-

sional employees.”” 119 Cong. Rec. H3447 (daily ed. May

8, 1973) (statement of Representative Ford). This grossly

understaffed agency could not implement FLCRA’s farm

worker protections. The Department’s most severe sanc-

tion commonly was “‘writ[ing] letters to all law violators.”

120 Cong. Rec. $5467 (daily ed. Apr. 9, 1974). Most crew

leaders remained unregistered. 119 Cong. Rec. H3447. The

Secretary of Labor had completed only a handful of in-

vestigations. Jd. By 1974 “only four persons hajd) been

referred to the Department of Justice for prosecution; and

only one person ha{d] ever been convicted and sentenced.”

S. Rep. No. 1295, 98d Cong., 2d Sess. 3 (1974).

This testimony established for Congress the critical need

for a “private remedy for aggrieved workers.”’ Jd.

Accordingly, Congress determined that the farm work-

ers themselves had to be empowered with access to federal

courts in order to enforce the Act. Congress desired a

mechanism that was “‘self-enforcing”’ and “patterned after

other Federal statutes in the’ field of civil rights.’’ Farm

Labor Contractor ion Act Amendments of 1963:

Hearings Before the Subcomm. on Agricultural Labor of

House Comm. on Education and Labor, 93d Cong., 1st

Sess. 112 (1973). The mechanism chose was the

creation of “an unfettered federal civil remedy for persons

aggrieved by a contractor’s violation of the Act.” H.R.

Rep. No. 1024 at 6 (emphasis supplied).

Congress determined that the private right of action

“crucial to the effective enforcement of existing law,” id.

was to be “available regardless of the existence of any

criminal or administrative sanctions provided for specific

kinds of violations of [the] Act.” H.R. Rep. No. 1493, 93d

Cong., 2d Sess. 11 (1974). Congress praised the private

civil action as “‘provid{ing]... a more realistic arsenal of

remedies in order to deter and correct the widespread

violations that now exist,” and “[pjroviding an aggrieved

farm worker with a Federal forum [that] will help secure

the Federal protections to which he is entitled.”” 120 Cong.

Rec. $18130 (daily ed. Oct. 3, 1974).

Congress thereupon enacted the comprehensive private

action provision which authorized the award of unlimited

damages for “intentional” violations “up to and including

an amount equal to the amount of actual damages” or

“$500 for each violation” as well as “other equitable re-

lief."" Farm Labor Contractor Registration Act Amend-

ments of 1974, Pub. L. No. 93-518, 1974 U.S. Code Cong.

& Admin. News 1899, 1905. So that the right might be

truly effective, Congress even authorized the judicial ap-

pointment of counsel for aggrieved farm workers. /d.

bl

bl

ers continued their oppression. Moreover, FLCRA’s nar-

row focus on crew leader misconduct was allowing other

employers to exploit farm workers without penalty.

'S. Rep. No. 1206 at 3.

The federal court cases brought by farm workers evi-

denced the exploitation.? These cases especially described

outrages in the transportation of farm workers. Crew lead-

ers and other employers were transporting farm workers

with less concern for their safety and dignity than farm

animals. Families were crammed into trucks lacking min-

imal safety devices let alone ordinary comforts. See AWPA

Hearings at 110, 123-24. In “‘appallingly unsafe’’ vehicles,

“people had to sit on top of piled luggage and bundles.”

Id. at 110. Children had to stand for long journeys as

defective floor boards allowed “‘fumes to come [into] the

truck.”’ Jd. Tarpaulins pulled over the top of trucks allowed

farm workers “very little air or ventilation.” Jd. Women

and children suffered the absence of food, water, and rest-

room facilities. Jd. Trucks, some even without headlights,

repeatedly crashed or broke down. Jd. at 124. Exhausted

drivers were kept awake as they drove only by the farm

workers’ shouts of panic. Jd.°

In direct response, Congress thoroughly revised FLCRA

and enacted AW/PA in its present form. AWPA reenacts

provisions of FLCRA concerning crew leader registration,

29 U.S.C. §§ 1811-1815, vehicle insurance, 29 U.S.C.

§ 1841(bX1XC), the prohibition against misleading workers,

29 U.S.C. § 1821(f), the requirement of farmer compliance

with working arrangements, 29 U.S.C. § 1822, the prohi-

bition against employing illegal aliens, 29 U.S.C. § 1816,

and the disclosure requirements, 29 U.S.C. § 1821(a}(d).

In addition, AWPA imposes the obligation to protect mi-

grant farm workers on every employer, including both crew

leaders and fixed-situs employers such as the defendant

‘herein. See 29 U.S.C. §§ 1821-1844.

2 See Hearings on the Migrant and Seasonal Agricultural Worker

Protection Act: Hearings on H.R. 7102 Before the Subcomm. on Labor

Standards of the Howse Comm. on Education and Labor, 97th Cong.,

2d Sess. 87-106 (1982) (hereinafter “AWPA Hearings’’).

* Other abuses perpetrated by farm worker employers were cata-

logued for Congress. See AWPA Hearings at 61-62.

10

Of signal importance, Congress carefully reenacted the

farm workers’ private right of action in AWPA and em-

powered courts to increase statutory damage awards

against recalcitrant employers. See 29 U.S.C. § 1854(c).

The House Report on AWPA sets forth the intent of Con-

gress ‘‘to encourage the resolution of differences without

resort to litigation, but also to imsure full access to the

Federal courts by injured private parties.”” H.R. Rep. No.

885, 97th Cong., 2d Sess. 21 (1982) (emphasis supplied).

Representative Ford, former Chairman of the House Ag-

ricultural Labor Subcommittee and a cosponsor of AWPA,

advised the full House that an important objective of the

legislation was to preserve and strengthen the farm work-

ers’ rights of direct access to federal court protection:

It has long been apparent that neither volun-

teerism on the part of agribusiness nor the puny

enforcement efforts of the Department of Labor

can be expected to make a significant difference

in the working conditions of farm workers. Like

the FLCRA, the AWPA provides for a private

right of action and holds out the prospect of large

damage awards against agricultural employers

who mistreat their workers. This, I am sure, will

prove to be the most important deterrent against

the continued abuse of migrant and seasonal farm

workers.

128 Cong. Rec. H10456 (daily ed. Dec. 20, 1982) (emphasis

supplied).

Senator Hatch, in presenting the AWPA bill to the Sen-

ate, made “specific comment” about the private right of

action and stressed that “[t]here is no limit on the amount

of actual damages that can be awarded by a court.”’ 128

Cong. Rec. S15565 (daily ed. Dec. 18, 1982). The Senator

‘“‘want[ed] to make absolutely clear... [that] full actual

damages would be awarded in every case.” Id. (emphasis

supplied).

Maa 0 oe

ee ee

a

1]

The court below, reviewing the history of the legislation,

correctly perceived that Congress intended the “private

right of action for violations of the Act’’ to be “{cjentral

to the Act’s enforcement.” Barrett v. Adams Fruit Co.,

Inc., 867 F.2d 1305, 1309 (11th Cir. 1989).

B. Congress Did Not Intend To Subordinate the Rem-

edies Available by Private Action Under AWPA to

the Limited Benefits Sometimes Available Under

Workers’ Compensation Schemes of the States

Petitioner urges the subordination of the farm workers’

private right of action for statutory remedies in the federal

courts to a system of limited benefits provided by Florida’s

workers’ compensation laws‘ based on a single reference

in AWPA to workers’ compensation insurance. The

congressional references to workers’ compensation insur-

ance during the legislative debates, and the express word-

ing of AWPA, permit no such result.

FLCRA initially demanded, among requirements for

crew leader registration, ‘‘a policy of insurance which in-

sures such applicant against liability for damages to per-

sons or property arising out of the applicant’s . . . operation

of ...any vehicle for the transportation of migrant work-

ers....’’ FLCRA § 5(aX2). This provision was designed

to assure, in an industry filled with fly-by-night operators,

some source of recovery for migrant workers injured in

transportation.

‘Unlike AWPA, which permits an injured farm worker to recover

up to his or her “actual damages,” including pain and suffering, the

Florida workers’ compensation law limits compensation to disabilities

that result in loss of earning capacity. Accordingly, if a farm worker

suffers a serious permanent injury that happens not to diminish his

earning capacity, no recovery would be permitted under the Florida

workers’ compensation law even though the injured worker has no nght

to sue at common law for such injury. See Grice v. Suwanee Lumber

Manufacturing Co., 113 So. 2d 742 (Fla. Dist. Ct. App. 1959).

12

In 1978, Congressman Ireland introduced a bill to amend

FLCRA that was apparently designed to reduce the cost

of crew leaders’ insurance and to limit exposure to liability

by acknowledging at the federal level the exclusivity of

state workers’ compensation remedies. The bill provided

that if an employer obtained ‘‘a policy of workmen’s com-

pensation insurance which insures the payment of work-

men’s compensation benefits under State law for personal

injury or death to migrant workers by accident arising out

of and in the course of their employment,”’ then “‘the policy

of vehicle liability insurance provided by him shall conform

to the exclusive remedy provisions of the State workmen’s

compensation law.” H.R. Rep. 10631(7), 95th Cong., 2d

Sess., reprinted in Farm Labor Contractor Registration

Act: Hearings on H.R. 8282 and Other Bills Before the

Subcomm. on Economic Opportunity of the Comm. on Ed-

ucation and Labor, 95th Cong., 2d Sess. 4 (1978). Rep-

resentative Ireland expressed concern about “‘the risk that

the courts might conceivably allow ‘double dipping’ by ag-

ricultural workers.”’ Jd. at 34. Farm employer witnesses

who favored the Ireland bill feared “that FLCRA

preempted the exclusive remedy provision of State work-

men’s compensation law and allow[ed] double dipping, dou-

ble recovery.”” Jd. at 107.

Congress rejected the Ireland bill, evidencing an inten-

tion that the program of private farm worker federal rem-

edies—then just recently enacted—should not be

subordinated to the limited regime of state workers’ com-

pensation benefits.

In 1983, when Congress expanded the coverage of the

Act so as to afford farm workers private federal remedies

against a larger group of agricultural employers, Congress

also authorized a set of practical insurance alternatives for

one set of risks. Thus, Congress reenacted as 29 U.S.C.

§ 1841(b\1XC) the vehicle insurance requirement of

FLCRA. Additionally, Congress provided for the coordi-

13

nation of benefits of vehicle insurance with policies of

workers’ compensation insurance:

If an agricultural employer . . . provides workers’

compensation coverage for such [agricultural]

worker in the case of bodily injury or death as

provided by such State law, the following ad-

justments in the requirements of subsection

(bX1XC) of this section relating to having an in-

surance policy or liability bond apply:

(1) No insurance policy or liability bond shall be

required of the employer, if such workers are

transported only under circumstances for which

there is coverage under such State law.

(2) An insurance policy or liability bond shall be

required of the employer for circumstances under

which coverage for the transportation of such

workers is not provided under such State law.

29 U.S.C. § 1841(c).

That provision is clearly limited to coordinating coverage

between two kinds of insurance covering to some degree

the same risks. That provision evidences no intent by Con-

gress that insurance coverage under state workers’ com-

pensation schemes should deprive injured farm workers of

the right to bring private damage actions in federal courts.

By the terms of the Act, the provision of workers’ com-

pensation insurance only relieves the employer from the

obligation of otherwise following ‘‘the [vehicle insurance]

requirements of subsection (b1)C) of this section [1841}.”

Id. (emphasis supplied). This insurance provision makes

absolutely no reference to the comprehensive scheme of

private remedies described in Section 1854.

The Department of Labor regulation purporting to in-

terpret the vehicle insurance provision, 29 C.F.R.

14

§ 500.122(b),° is invalid. Even if the regulation merely ac-

knowledged the applicability of state exclusive remedy pro-

visions, as they may be interpreted broadly or narrowly

by state courts, the regulation would be without legitimate

basis. But the regulation goes further. It would require

the federal courts to determine the primary applicability

of state workers’ compensation laws and would create a

federal exclusive remedy defense for farm worker em-

ployers, without regard to the quality or scope of available

state benefits. Neither the Congressional legislative record

nor the language of AWPA as enacted support that reg-

ulation. Consequently, amici urge this Court to invalidate

the regulation and preserve the farm worker remedies in

full foree as Congress intended them to be. As this Court

noted in a related context, “‘[i]t would be a tour de force

of statutory misinterpretation’’* to treat an amendment to

an act intended to benefit farm workers as a limitation

on the rights of farm workers to seek federal court relief

and to achieve the full protections of the Act.

C. In the Rare Instance When Congress Intends To

Subordinate a Federal Benefits Program to State

Workers’ Compensation Laws, It Does So in Un-

mistakable Language Nowhere Found in AWPA

On rare occasions Congress has subordinated a federal

program of relief for particular workers and injuries to

state workers’ compensation benefits for the same persons

and injuries. But on those occasions Congress has spoken

in unmistakable language. For example, in the War Hazard

Compensation Act, 42 U.S.C. § 1701 et seg., Congress, in

providing for federal compensation to workers who sus-

tained injuries as a result of “a war-risk hazard,” also

‘Where a State workers’ compensation law is applicable and cov-

erage is provided for a migrant or seasonal agricultural worker by the

employer, the workers’ compensation benefits are the exclusive remedy

for loss under this Act in the case of bodily injury or death.” Jd.

* See Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 721 (1980).

15

authorized workers to choose instead state remedies. But

Congress made the choice clear:

No benefits shall be paid or furnished under the

provisions of this subchapter for injury or death

to any person who recovers or receives work-

men’s compensation benefits for the same injury

or death under... the law of any State....

42 U.S.C. § 1705.

Similarly, in the Black Lung Benefits Act, 30 U.S.C.

§ 901 et seg., Congress integrated a federal scheme for

compensating coal miners with state programs of workers’

compensation by prescribing that in those states where

the Secretary of Labor found “adequate compensation,”’

30 U.S.C. § 931(b), workers’ claims for benefits “shall be

filed pursuant to the applicable State workmen’s compen-

sation law....” 30 U.S.C. § 931(a).

There are no such provisions in AWPA, because Con-

gress intended no subordination of federal rights to limited

state remedies.

D. State Workers’ Compensation Benefits, Where

They Are Available at All to Farm Workers, Fall

Far Short of the Remedies Congress Intended To

Provide in AWPA

While state workers’ compensation systems are ap-

plauded for offering convenient payment mechanisms for

injured industrial workers, these state systems present

daunting perplexities to migrant farm workers. By defi-

nition, migrant farm workers go from state to state, and

there is no uniformity among workers’ compensation laws

of the states. Some states offer some kinds of workers’

compensation remedies to migrant farm workers, but sev-

eral do not.” Some states offer workers’ compensation rem-

’See 4 A. Larson, The Law of Workmen's Compensation App. A

(1989).

16

edies to certain farm workers, but not to farm workers

employed by smaller farms or by farmers who employ no

more than a specified number of workers for no more

than a limited period of time,* or to farm workers engaged

in other than a limited number of agricultural tasks.* Those

states that provide some workers’ compensation remedies

to farm workers often question whether injuries sustained

in transportation to and from the job site are

as “arising out of and in the course of’ employment;

they also restrict payments to injuries from “accidents’’

and deny compensation for much intentional conduct which

would clearly predicate actual and statutory damage re-

coveries under AWPA.

Thus, a rule that subordinated AWPA remedies to state

workers’ compensation laws, whenever some of those laws

offered some benefits for some disabilities to some farm

workers, would dramatically restrict the scope of the fed-

era] act and thrust farm workers into a maze of confusion.

Only an outstanding cartographer could chart the proper

boundary between AWPA and the various state workers’

Larson, supra note 7.

ified Laws Ann. § 62-3-16 (1989). The Wyoming workers’ compensation

Statute covers only those farm workers engaged in “power farming.”

Wyo. Stat. § 27-14-103(d(viii) (1989).

" See 1 A. Larson, supra note 7 at § 6.10 (“Few er

words in the history of law have had to bear the weight of such a

mountain of interpretation as has been heaped upon this slender foun-

tation”).

17

men and harbor workers injured in maritime employment."’

And al] the while migrant farm workers would continue

to serve in near peonage; their living conditions unim-

proved; their wages unsecured; their injuries unrequited.

The legislative record of AWPA shows that Congress

one of solicitude for migrant farm workers. Nothing in

that legislative history supports a crippling construction of

the federal Act whereby, through a kind of perverse and

reverse preemption, the exclusive remedy provisions of

state workers’ compensation laws would blunt the effec-

tiveness of the federal act.

AWPA represents a humane impulse by Congress. The

court below respected that impulse. It construed the Act

so as to preserve the opportunity of migrant farm workers

to enforce their limited rights and to obtain at least a

measure of relief from the federal courts. That decision

correctly effectuated the intent of Congress and should be

affirmed.

» See, e.g., Sun Ship, Inc. v. Pennsylvania, supra note 6; Nacirema

v. Johnson, 396 U.S. 212 (1969); Calbeck v. Travelers Insurance Co.,

870 U.S. 114 (1962); Hahn v. Ross Island Sand & Gravel Co., 358 U.S.

272 (1959); Avondale Marine Ways, Inc. v. Henderson, 346 U.S. 366

(1953); Davis v. Department of Labor and Industries, 317 U.S. 249

(1942); Washington v. W.C. Dawson & Co., 264 U.S. 219 (1924); Grant

Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922), Western Fuel Co.

v. Garcia, 257 U.S. 233 (1921); Knickerbocker Ice Co. v. Stewart, 253

U.S. 149 (1920); Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).

18

Il. FLORIDA’S WORKERS’ COMPENSATION EXCLUSIV-

ITY PROVISION DOES NOT PURPORT TO BAR A PRI-

VATE ACTION BROUGHT UNDER AWPA

A. State Exclusivity Provisions Do Not Preclude Em-

ployees from Recovering from Other Jurisdictions

The courts consistently support supplemental recoveries

under federal programs for worker injuries, notwithstand-

ing exclusive remedy provisions in state workers’ compen-

sation laws which may also provide limited coverage for

the same injuries. Only unmistakable language by Con-

gress—not present in AWPA—can subordinate federal

worker entitlements to state workers’ compensation rem-

edies.

Thus, Congress has enacted severa] statutes designed

to protect various categories of workers from workplace —

injuries and to supplement relief that might be available

to those workers under state workers’ compensation laws.

For example, Congress has enacted workers’ relief statutes

for longshoremen and harbor workers, seamen", federal

government employees,‘ railroad workers,”* military base

employees,'* and handicapped persons.’’ When these work-

ers are injured they often obtain state workers’ compen-

sation benefits for job related injuries and then seek

additional benefits under one or another of the federal

laws. In the federal proceedings, as in the instant case,

employers commonly assert election of remedies defenses

based on the exclusive remedy provisions of the states’

* Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901

et seg.

"Jones Act, 46 U.S.C. App. § 688.

“ Federal Employees Compensation Act, 5 U.S.C. § 8101 et seg.

* Federal Employees Liability Act, 45 U.S.C. § 56 et seg.

* Defense Base Act, 42 U.S.C. §§ 1651-1654.

" Rehabilitation Act of 1973, 29 U.S.C. § 794.

19

workers’ compensation statutes. Uniformly, the courts

overrule these defenses, sustain the employees’ rights to

seek supplemental federal recoveries, and vindicate the

congressional solicitude for employee welfare expressed in

the various federa] statutes."*

These decisions often speak in customary terms of fed-

eral preemption. But these decisions also reflect this

Court’s limiting construction of exclusive remedy provi-

sions in state workers’ compensation laws, consonant with

the teaching that “‘a State has no legitimate interest” in

preventing another jurisdiction ‘‘from granting supplemen-

tal compensation” to an injured worker. Thomas v. Wash-

ington Gas Light Co., 448 U.S. 261, 256 (1980); Industrial

Corem. of Wisconsin v. McCartin, 330 U.S. 622 (1947).

* See, e.g., Calbeck v. Travelers Insurance Co., 370 U.S. 114, 131

(1962) (“We hold that the acceptance of the [workers’ compensation)

payments does not constitute an election of the remedy under state

law precluding recovery under the Longshoremen’s Act."’); Thibodauz

v. Atlantic Richfield Co., 580 F.2d 841, 's47 (5th Cir. 1978) (exclusive

remedy provisions of Louisiana workers’ compensation remedy no bar

to Jones Act suit because “an exclusive remedy provision in a state

workmen's compensation law cannot be applied when it will conflict

with maritime policy and undermine substantive rights afforded by fed-

eral maritime law”); Roberts v. City of Plantation, 558 F.2d 750, 751

(5th Cir. 1977) (“If plaintiff can prove himself entitled to Jones Act

recovery, the exclusive remedy provision of Florida's workmen's

i!

ip

ne

v. Brie City and County Library Board of Directors, 516 F. Supp.

5

5

s

|

Landy, 370 F.2d 46 (9th Cir. 1966) (California workers’ compensation

recovery no bar to suit under the federal Defense Base Act).

20

The development of this construction bears brief men-

tion. In MeCartin, 330 U.S. 622 (1947), an Illinois residen

worker injured on the job in Wisconsin recovered workers’

compensation payments under the Illinois law. Like the

contrary, id. at 627-28, cumuad Ge Waals ndedie

provisions so as to bar only other actions by the work

under the common law or statutes of Illinois and upheld

the federa] Constitutional power of Wisconsin to make a

supplemental award. Jd. at 630. The Court announced that

its holding was made “‘in light of the rule that workmen's

compensation laws are to be liberally construed in fur-

therance of the purpose for which they were enacted [and]

we should not readily interpret such [an exclusive remedy)

statute so as to cut off an employee's right to sue under

phasis supplied).

In Thomas, 448 US. 261 (1980), a District of “olumbia

oF cand On) Os tants of Gs ee

—

le

21

give full faith and credit to the prior Virginia proceeding

and the exclusivity provisions of the Virginia law.

This Court upheld the worker’s right to recover

Se ee ee

:

,

:

+

hy

iW

the

uh

aif

faa

58

ited in effect only to the state of enactment for “

has no legitimate interest within the context of our

system in preventing another State from granting a

plemental compensation award....” 448 U.S. at 286.

Entirely consonant with Thomas, the Florida statute on

its face reflects no Florida interest in denying a worker

who is entitled to benefits under the Florida workers’ com-

Hit

what he can recover under an alternate plan.”

* According to Thomas, even if the “unmistakable language’’ test of

McCartin survives, only the exclusivity provisions of the Nevada work-

ers’ compensation law meet that test. See id. at 275 n.21. And even

that exclusivity provision speaks only to recoveries ‘‘under the laws of

any other state.” Nev. Rev. Stat. § 616.525 (1979) (emphasis supplied).

The Nevada statute makes no effort to deny injured workers supple

mental benefits under the laws of the federa) government.

” This matter is addressed by Fis. Stat. Ann. § 440.0% 1) (West 1981),

22 :

The Florida Supreme Court has acknowledged that

der the Florida workers’ compensation law, an employee

was permitted to seek recovery in more than one

....« DeCancino v. Eastern Air Lines

15, 17 (Fla. 1970). Ln Se, Se es SS

make

clear, the respondents could recover supplemental -

ments under, say, Alabama law in a state court in Als

bama, it follows as an a fortiori matter that respondents

can recover supplemental payments under law in

a federal court—wherever located. That the federal court

is in Florida can have no bearing on the outcome of this

provision—the Florida Supreme Court has narrowly con-

strued the exclusivity provision so as to allow recovery,

where the tortious conduct contravenes important federal

policies for the protection of employees in the workplace.

pensation for the same injury greater than is provided

™ See also Follese v. Eastern Air Lines, 271 N.W.2d 824 (Minn. 1978

where an injured worker with contacts both in Florida and Minnesota.

but whose workers compensation claim was barred in Florida by the

23

Thus, in Byrd v. Richardson-Greenshields Securities, Inc.,

14 Fla. L. Weekly 549 (Fla. Sup. Ct. Oct. 26, 1989), female

employees who were sexually harassed in the workplace

sued their employer and sought tort recovery under Flor-

ida common law for the infliction of emotional distress.

The employer claimed the action was barred by the ex-

clusivity provision of the Florida workers’ compensation

law. The Florida Supreme Court sustained the employees’

right to proceed notwithstanding the exclusivity provision.

According to the court, “the present case strongly impli-

cates... sexual harassment policies [of federal and state

law] and, accordingly, may not be decided by a blind ad-

herence to the exclusivity rule of the workers’ compen-

sation statute alone.” Jd. at 550. Using federal enactments

as its “primary source,” and with due regard for the Su-

premacy Clause, the court found “‘overwhelming public pol-

icy” against sexual harassment, and held that “(a}pplying

the exclusivity rule of workers’ compensation to preclude

any and all tort liability effectively would abrogate this

policy... and flout Title VII of the Civil Rights Act of

1964.” Jd. at 551. "

Thus, this Court’s decisions in Thomas and McCartin

along with the Florida Supreme Court’s construction of

the Florida law require a determination here that not-

withstanding respondents’ limited recovery of state work-

ers’ compensation benefits, they are fully entitled to pursue

a supplemental federal court recovery under AWPA.* The

Florida statute limits a worker’s right to a supplemental

remedy from his employer, but only if such supplemental

24

remedy is predicated on Florida law. Here, respondents

seek a remedy predicated on federal law. Further, the

Florida exclusive remedy provisions allow a worker to ob-

tain a tort recovery even under Florida law where the

tortious conduct violates important worker protection pol-

icies expressed in federal law. Here the tortious conduct

alleged violates just such a federal law. The Florida law

is thus not a bar to recovery under AWPA.

III. RESPONDENTS ARE ENTITLED TO REMEDIES UN-

DER BOTH THE STATE AND FEDERAL REGIMES.

IN THE EVENT THE COURT CONSTRUES THE

STATE LAW TO APPLY HERE, THE STATE EXCLU-

SIVE REMEDY PROVISION CLASHES WITH AWPA

AND MUST BE PREEMPTED

The test for federal preemption is well established: ‘In

this as in other fields, the question of whether federal law

preempts state law ‘involves a consideration of whether

that law stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Con-

gress.’ ’’ Aronson v. Quick Point Pencil Co., 440 U.S. 257,

262 (1979) (quoting Hines v. Davidowitz, 312 U.S. 52, 67

(1941)). See also Bonito Boats, Inc. v. Thundercraft Boats,

Inc., 109 S. Ct. 971 (1989) (Florida law preempted). Under

the Supremacy Clause of the Constitution, no state may

enact laws that “give protection of a kind that clashes

with the obiectives of the federal . . . laws.’’ Sears, Roebuck

& Co., v. Stiffel Co., 376 U.S. 225, 231 (1964). Thus, if

this Court were to determine that the Florida workers’

compensation law bars remedies under the laws of other

jurisdictions, those state restrictions would give protection

to agricultural employers from federal remedies for vio-

lations of AWPA. That would be a head-on clash between

the state law and the purposes and objectives of AWPA

and preemption would be required.

But the exclusivity provisions of the Florida statute do

not limit an injured worker’s right to obtain supplemental

25

payments under a statute of a jurisdiction other than Flor-

ida. Further, as noted in section I of this brief, Congress

clearly did not intend to subordinate farm worker rights

under AWPA to the limited benefits available under state

workers’ compensation acts. Thus, under the construction

of the state and federal statutes presented here, farm

workers may exercise rights under both statutes and the

Florida law does not block the accomplishment of Con-

gress’ purposes in AWPA. In these circumstances, there

is no question of federal preemption.

In the event, however, the Court determines that the

exclusive remedy provision of the Florida law does apply

to the facts presented here, then it must be noted that

the Court has already indicated the appropriateness of

preempting that provision. Thus, in Sun Ship, Inc., v.

Pennsylvania, 447 U.S. 715 (1980), workers injured in con-

nection with certain ship building and repair enterprises

in maritime commerce who were eligible for benefits under

the federal Longshore and Harbor Workers’ Compensation

Act first sought benefits under the Pennsylvania workers’

compensation law. The question presented to this Court

was whether a state was authorized to make payments to

workers under a state compensation scheme for injuries

that fell within the coverage of the federal act. This Court

determined that the remedial provisions of both state and

federal statutes could stand together. Further, on the basis

of Calbeck v. Travelers Insurance Co., 370 U.S. 114, 131-

32 (1962), the Court ruled that the employees’ acceptance

of payments under the state law did rot constitute an

election of remedies precluding recovery under the federal

act. 447 U.S. at 723-24.

In light of this ruling, it was unnecessary for the Court

to reach any preemption issue. Nevertheless, the Court

described preemption as the proper procedure should a

case arise where the exclusive remedy provisions of a state

workers’ compensation law are applied so as to frustrate

26

workers’ claims for relief under a federal statute. Accord-

ing to the Court:

Most often, state workmen’s compensation laws

will not be treated as making awards thereunder

final or conclusive. See Calbeck v. Travelers In-

surance, Co., supra, [370 U.S.] at 131-132; Jn-

dustrial Comm’n v. McCartin, supra [330 U.S.

622].... Admittedly, if a particular state com-

pensation law provision does indisputably declare

its awards final, a conflict with the LHWCA may

possibly arise where a claimant seeks inferior

state benefits in the first instance .. . . [A]lthough

the question is not directly before us, we observe

that if federal preclusion ever need be implied to

cope with this remote contingency, a less dis-

ruptive approach would be to pre-empt the state

compensation exclusivity clause rather than to

preempt the entire state compensation statute as

appellant suggests.

447 U.S. at 724 n.6 (emphasis supplied).

IV. THE FOURTH CIRCUIT’S DECISION IN ROMAN v.

SUNNY SLOPE FARMS, INC. WAS WRONG IN FAIL-

ING TO FOLLOW THE RULE THAT STATE LAW IM-

MUNITY ONLY OPERATES IN THE SPHERE OF

STATE LAW CLAIMS

In Roman v. Sunny Slope Farms, Inc., 817 F.2d 1116

(4th Cir. 1987), the Fourth Circuit denied an injured farm

worker the federal remedies Congress expressly created

for his protection in AWPA solely because the worker had

accepted limited benefits under South Carolina’s workers’

compensation law. The Roman court principally relied on

two cases, United States v. Demko, 385 U.S. 149 (1966)

and Garvin v. Alumaz of South Carolina, 787 F.2d 910

(4th Cir. 1984). Neither case supports the court’s decision.

In Demko, a federal prisoner injured in a federal pen-

itentiary recovered under 18 U.S.C. § 4126, a federal com-

27

pensation act wherein Congress provided for federal

“compensation to inmates... for injuries suffered... in

any work activity in connection with the maintenance or

operation of the institution where confined.” The prisoner

then sought additional recovery from the United States

under the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

This Court ruled that 18 U.S.C. § 4126 represented the

prisoner’s exclusive remedy, because compensation laws

enacted by Congress for the benefit of a particular group

of workers are generally thought of as a substitute for

common law tort actions against the federal government,

385 U.S. at 151-52, and it would be anomalous to infer a

congressional purpose to allow the Federal Tort Claims

Act to give greater protection to “injured prisoners [than

to] all other government employees who are protected ex-

clusively by the Federal Employees’ Compensation

Act....” Id. at 152.%

Demko was strictly a conflict between two federal laws

reflecting the conflicting expressions of a single legislature.

Unlike the instant case, Demko presented no conflict be-

tween a federal law and the law of a state. As the Elev-

* The Court relied on Johansen v. United States, 343 U.S. 427 (1952)

and Patterson v. United States, 359 U.S. 495 (1959), both requiring the

harmonization of two federal statutes of equal dignity, one designed

specifically to compensate injured crew members on government vessels

and one designed generally as a waiver of the government's sovereign

immunity. In each case, the Court ruled that the specific federal com-

pensation statute provide the worker's exclusive remedy against the

United States. According to the Court, there was no evidence that

Congress, merely by “‘put|ting] aside its sovereign armor” in the gen-

era) statute for certain damage suits, intended to confer substantive

rights on claimants additional to those offered ‘‘all other Government

employees on the same vessel” as provided for in the specific com-

— statute. Johansen, 343 U.S. at 431 and Patterson, 359 U.S.

at 496.

* Prisoners have traditionally been denied state workers’ compen-

sation remedies for injuries sustained in connection with work done in

prison. See lc A. Larson, supra, note 7 at § 47.31.

28

enth Circuit ruled in the instant case, Demko does not

Support the argument that a class of workers whose par-

ticular workplace problems Congress has acknowledged and

sought to remedy in a federal scheme, should be limited

to the less adequate protections of the laws of the states.

The congressional legislative record in AWPA clearly re-

flects that farm workers are yet another group of workers

for whom Congress deemed state remedies to be inade-

quate and for whom Congress created a special federal

system of recovery for work-related injuries.

Thus, Demko might support a holding that AWPA pro-

vides the exclusive federal remedy for farm workers. But

by no stretch can Demko support a holding that AWPA

provides no federal remedy for farm workers.”

The Roman court’s additional reliance on Garvin v. Al-

umax of South Carolina, Inc., 787 F.2d 910 (4th Cir. 1984)

is also misplaced. In Garvin, an injured dock worker col-

lected compensation under the federal Longshore and Har-

bor Workers’ Compensation Act. He then sought a tort

recovery grounded solely upon state common law negli-

gence against his remote employer, Alumax. For an eni-

ployee who accepted state workers’ compensation benefits,

the state law “exclude{d] all other rights and remedies”

against a remote employer. Relying on Ferri v. Ackerman,

444 U.S. 193, 198 (1979) (“‘when state law creates a cause

of action, the state is free to define defenses to the claim.

including the defense of immunity”), the Garvin court up-

held Alumax’s defense of immunity to the state tort suit

* The federal law/federal law conflict of Demko might arise if, for

example, migrant farm workers injured while working in the District

of Columbia received compensation benefits under the federal Long.

shore and Harbor Workers’ Compensation Act (the workers’ compen-

Sation statute for the District of Columbia) and thereafter sought

supplemental benefits via a private suit under AWPA. There, in con-

trast to the instant case, the conflict would be between the exclusive

remedy provisions of a federal statute (LHWCA) and the particularized

farm worker remedies of another federal statute (AWPA).

29

based on the state statute. The court deemed it irrelevant

to the availability of state law immunity to the state law

claim that had the worker been able to plead a federal

cause of action in tort (he could not), Alumax would have

had no federal law immunity to such federal lawsuit. Ac-

cording to the Garvin court, upholding state law immunity

from state tort suits for a remote employer did not frus-

trate the achievement of the goals of the federal compen-

sation statute, which provided no such immunit’, because

there was no evidence that Congress meant to create a

federal cause of action against remote employers; there

was no evidence that Congress meant to deny immunity

to a remote employer in state cases; and because state law

immunity would have no application to the assertion of a

federal cause of action against the remote employer.

Garvin does not support the result in Roman sustaining

a state law defense to defeat a federal law claim. Garvin

correctly holds—as respondent asserts here—that a state

law immunity defense is operative only “in its own sphere.

Id. at 917.”

* See also Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272

(1959) (federal immunity for employer under federal Longshore and

Harbor Workers’ Compensation Act did not bar employee from main-

taining tort suit under state common law against employer who was

not immune under the state workers’ compensation laws).