On December 6, 2020, a federal judge heard arguments on a motion to dismiss in Reyes-Trujillo v. Four Star Greenhouse, a case brought by a group of farmworkers alleging wage and hour violations against the greenhouse company where they worked. The case illustrates why a strong Fair Labor Standards Act (FLSA) joint employment standard is critical to raising labor standards in the H-2A temporary agricultural visa program and providing H-2A farmworkers with a meaningful remedy for labor violations.

The plaintiffs, H-2A agricultural visa holders from México, worked for Four Star Greenhouse, a Michigan corporation that cultivates and sells plants and finished crops. Four Star engaged a farm labor contractor to recruit its workers through the H-2A visa program, which allows employers to recruit foreign nationals to the United States to work in temporary agricultural jobs.

The farm labor contractor acted as the plaintiffs’ employer by applying for their H-2A visas, transporting them to the United States, arranging for them to work at Four Star, and paying them. However, the plaintiffs worked at Four Star’s facility, under Four Star’s supervision, and for Four Star’s benefit. Four Star also arranged for their hire and paid the farm labor contractor a rate for their labor that was based on the plaintiffs’ hourly wage and hours worked.

The farmworkers allege that, while working at Four Star, they endured egregious labor violations, including not being paid for all hours worked and having their work checks bounce. The plaintiffs complained to both Four Star and the farm labor contractor that they had not been paid, after which the contractor allegedly retaliated by orchestrating the arrest and deportation of some of the plaintiffs by federal immigrant agents.

The plaintiffs, represented by the Michigan Immigrant Rights Center, Farmworker Legal Services, and Centro de Los Derechos del Migrante, sued Four Star for violations of the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Act (AWPA) based on the wage violations and retaliation they endured.

Four Star filed a motion to dismiss the case, arguing, among other things, that it was not the plaintiffs’ employer so was not responsible under the FLSA or the AWPA.

In NELP’s amicus brief supporting the plaintiffs’ opposition to the motion to dismiss, NELP argues that Congress intended for the FLSA and the AWPA to expand accountability for labor violations to companies that insert contractors between themselves and their laborers while maintaining the economic power to prevent FLSA and AWPA violations.

The definition of “employ” in the FLSA and the AWPA—which includes “to suffer or permit to work”—is the broadest definition of employment used in a law. It derives from state child labor laws, which used the “suffer or permit to work” language to reach businesses that used middlemen to illegally hire and supervise children.   

Given this broad definition, it is clear that Congress intended both the FLSA and AWPA to cover businesses that allow work to be done for their benefit and have the power to prevent wage and hour abuses, even if they disclaim responsibility as an employer.  Because Four Star had the power to know about and prevent the egregious violations that the plaintiffs endured, it should be considered the plaintiffs’ employer under the FLSA and AWPA. 

Because Four Star had the power to know about and prevent the egregious violations that the plaintiffs endured, it should be considered the plaintiffs’ employer under the FLSA and AWPA. 

Furthermore, there is endemic exploitation in the H-2A visa program, and this exploitation cannot be curbed unless companies that hire H-2A farmworkers through farm labor contractors are held accountable. Coming from homelands with few job opportunities, H-2A workers—most of whom come from México—often arrive in the United States in serious debt, having paid significant fees and travel costs for the opportunity to work in the United States.  

Companies like Four Star that use farm labor contractors to recruit, transport, and pay H-2A migrant workers exacerbate the workers’ vulnerability to exploitation.  Labor brokers like the farm labor contractor in this case traffic in foreign workers whom they hire out to a variety of different employers.   

The workers are dependent on the farm labor contractors for their housing, food and transportation and on the agricultural operations like Four Star for their jobs and livelihood.  Many farm labor contractors have few assets, which means workers cannot obtain legal recourse from them for violations of their rights. Meanwhile the agricultural operations can attempt to avoid responsibility for their migrant workers’ exploitation by pointing the finger at the farm labor contractor. 

Meanwhile the agricultural operations can attempt to avoid responsibility for their migrant workers’ exploitation by pointing the finger at the farm labor contractor. 

This attempt to deflect responsibility is precisely what is happening in the Four Star case. Holding farm operators like Four Star accountable to their subcontracted workers as an employer will improve FLSA and AWPA compliance in an industry with rampant worker abuse.  

It will incentivize farm operators to hire H-2A visa farmworkers directly, or to choose farm labor contractors with strong compliance records and to set up procedures that detect their contractors’ unlawful labor practices. And it will increase workers’ chances of obtaining a meaningful remedy for violations of their rights.

This blog originally appeared at NELP on December 16, 2020. Reprinted with permission.

About the Author: Laura Padin joined NELP in 2018 as a senior staff attorney for the Work Structures Portfolio.