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No. 93-2447
UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
32 F.3d 71;
1994 U.S. App. LEXIS 20700; 128
Lab. Cas. (CCH) P33,120
May 12, 1994, Argued
August 5, 1994, Decided
PRIOR HISTORY: [**1]
Appeal from the United States District Court for the Eastern District of
North Carolina, at Elizabeth City. Franklin T. Dupree, Jr., Senior
District Judge. (CA-91-61-2-D).
DISPOSITION: AFFIRMED.
OVERVIEW: A
migrant farm worker was injured when he fell from the rear of a pickup
truck owned and operated by the farm labor contractors for whom he
worked. He initiated an action against the contractors and the farmers
who grew watermelons, alleging violations of the Migrant and Seasonal
Agricultural Worker Protection Act, 29 U.S.C.S. § 1801 et seq.,
for the injury sustained from the fall, violation of record keeping
requirements, acts of negligence, and failure to meet vehicular
requirements. The court held that no reasonable jury could have found
that the contractors and growers were the joint employers of the worker,
and as there was no evidence that they solicited, hired, employed,
furnished, or transported migrant workers, they did not qualify as
agricultural employers under the statute. Therefore, there could not be
any liability for failing to keep employment records or for the injuries
sustained from the fall where there was no joint or agricultural
employment, and the statute's vehicular requirements were complied with.
OUTCOME: The
court affirmed the district court's judgment.
COUNSEL: Argued:
Robert James Willis, Raleigh, North Carolina, for Appellant.
Argued: James Nicholas
Ellis, POYNER & SPRUILL, L.L.P., Rocky Mount, North Carolina, for
Appellees.
On Brief: L. Frank Burleson,
Jr., REVELLE, BURLESON, LEE & REVELLE, Murfreesboro, North Carolina,
for Appellees Vann; Ronald G. Baker, BAKER, JENKINS, JONES & DALY,
Ahoskie, North Carolina, for Appellees Bunch.
JUDGES: Before
CHAPMAN, Senior Circuit Judge, and ELLIS, United States District Judge
for the Eastern District of Virginia, sitting by designation, and KNAPP,
Senior United States District Judge for the Southern District of West
Virginia, sitting by designation.
OPINIONBY: CHAPMAN
OPINION: [*72]
OPINION
CHAPMAN, Senior Circuit
Judge:
Desmond Ricketts, a migrant
farm worker, was injured when he fell from the rear of a [*73] pickup
truck owned and operated by the farm labor contractor for whom he
worked. Ricketts initiated this action against James and Jeanette Flakes
("the Flakes"), the farm labor contractors; Hugh Vann &
Son, Hugh Vann and Billy Vann ("the Vanns"), [**2] who are
watermelon growers; and Murfreesboro Farms, Inc., and its principals,
Percy Bunch and Francis Bunch, (collectively "the Bunches"),
who are also watermelon growers, alleging violations of the Migrant and
Seasonal Agricultural Worker Protection Act ("AWPA"), 29
U.S.C.A. § 1801 et seq. , for the injury he sustained from the
fall, for violation of record keeping requirements, for alleged acts of
negligence concerning the Vanns' and the Bunches' employment of the
Flakes as their labor contractor, and for failure to meet vehicular
requirements mandated by the AWPA. After a hearing, the district court
granted the Vanns' and the Bunches' summary judgment motions. n1
Ricketts now appeals, and we affirm.
n1 The Flakes and Ricketts
eventually settled their dispute, which is not at issue on this
appeal.
I.
Ricketts was a migrant farm
worker who harvested watermelons in Murfreesboro, North Carolina in
1988, 1989 and 1990. He was not recruited to perform farm work, but
traveled to [**3] Murfreesboro to find work. During his work in
Murfreesboro, Ricketts paid for a hotel room in Ahoskie, N.C.
After contacting the Flakes,
Ricketts obtained employment in 1989 as a "loader" and in 1990
as a "cutter." Loaders went behind the cutters in the
watermelon fields and loaded the cut melons onto the trucks. The trucks,
once full, went to the packing shed, owned by the Bunches, where the
melons were unloaded into bins or onto tractor-trailer trucks. Cutters
are given some instruction, but ultimately it is their decision whether
a melon is ripe for cutting. The Flakes prepared all the pay records of
their workers and were the sole source of instruction for the workers.
Ricketts testified that neither the Vanns nor the Bunches came to the
fields to supervise his work. However, James Flakes testified that Hugh
Vann and Percy Bunch had the right to and did personally discharge
particular members of the Flakes crew when the crew was destroying
produce. n2
n2 Flakes, however, could
not recall a specific instance of this type of discipline.
[**4]
During the summers of 1989
and 1990, the Vanns were engaged in the production of melons and other
agricultural crops near Murfreesboro. During those summers, the Flakes
were farm contractors (as the term is defined by the AWPA, § 1802(7))
and the Vanns contracted with the Flakes to furnish labor crews to
harvest their melons in the summers of 1989 and 1990.
During the same time period,
the Bunches through Murfreesboro Farms, Inc., were in the business of
raising, harvesting and brokering melons. Neither the Bunches nor
Murfreesboro Farms had an agreement with the Flakes to harvest their
crops. Ricketts stated that he thought he was working for the Bunches
because "we would go into the packing house with [Percy
Bunch]." Murfreesboro Farms frequently advanced money to the
various farm labor contractors, including the Flakes, on behalf of the
growers for whom they were performing services, which money was
recovered by way of deductions from the amounts due the various growers
on the purchase of their watermelons.
On July 25, 1990, Ricketts
was injured when he fell from the back of a pickup truck owned by the
Flakes. Ricketts did not know who the driver of the truck was, but he
had ridden [**5] in the truck from the Bunches' packing shed to a local
gas station. As the truck left the station, Ricketts fell. Ricketts was
treated at a local hospital and released the same day.
Ricketts filed this action
against the Flakes and the Vanns and later amended his complaint to
include the Bunches. The complaint alleged that both the Bunches and the
Vanns were either employers or joint employers of Ricketts in 1989 and
1990, and set forth numerous claims, four of which are relevant to this
appeal. First, Ricketts alleged that the defendants failed to comply
with the recruitment requirements of 29 U.S.C.A. § 1821(a)
regarding pay records, the requirements of the statute and regulations
[*74] relating to providing plaintiff with itemized pay statements, and
that in violation of their agreement with Ricketts, they failed to pay
state or federal unemployment and social security taxes due on Ricketts'
wages. Second, he alleged actual damages as a result of the Vanns and
the Bunches violation of 29 U.S.C.A. § 1841(b)(1)(A)-(C) for
transporting him in a vehicle that did not meet safety and equipment
standards and was not fully [**6] insured. Third, Ricketts alleged
violations of 29 U.S.C.A. § 1842, for the Vanns' and the
Bunches' failure to determine whether the Flakes possessed a valid
certificate of registration which authorized the Flakes to transport
farm workers. Fourth, Ricketts alleged that the Vanns and the Bunches
negligently hired and retained the Flakes as farm labor contractors.
Both the Bunches and the
Vanns successfully moved for summary judgment on all claims. To prevail
on his first two claims, Ricketts had to establish that the Vanns and
the Bunches were the joint employers of Ricketts with the Flakes in 1989
and 1990. [HN1] In addressing this issue, the court used the nine
factors outlined in Haywood v. Barnes, 109 F.R.D. 568, 587 (E.D.N.C.
1986): (1) ownership of the property and facilities where the work
occurred; (2) degree of skill required to perform the job; (3)
investment in equipment and facilities; (4) permanency and exclusivity
of employment; (5) nature and degree of control of the workers; (6)
degree of supervision, direct and indirect, of the work; (7) power to
determine the pay rates or the methods of payment of the workers; [**7]
(8) the right, directly or indirectly, to hire, fire, or modify the
employment conditions of the workers; and (9) preparation of payroll and
payment of wages. "The presence or absence of any individual factor
is not dispositive of whether the economic realities indicate the
existence of an employee/employer relationship. Such a determination
depends 'upon the circumstances of the whole activity.'" Id. at
587 (citation omitted).
As to the Vanns, the court
found first that they leased the property on which the melons were
grown, and they did not own other facilities where harvesting activities
occurred. Second, farm work is unskilled labor, which required no
direction from the Vanns. Third, the Vanns had no investment in
equipment. Fourth, Ricketts did not work exclusively on the Vann's
leased property. Fifth, there was no evidence that the Vanns exercised
any control over the Flakes employees, including Ricketts. Sixth, there
was no evidence that the Vanns supervised the work, directly or
indirectly, or that they had a right to do so. Seventh, the Flakes
controlled exclusively the pay rates for the workers. Eighth, no
evidence established that the Vanns [**8] ever hired, fired or modified
the employment condition of any worker, including Ricketts. And ninth,
the Flakes controlled all payroll and payment matters.
Based on these undisputed
facts, the court found "no reasonable jury could find that the
Vanns and the Flakes were joint employers of Ricketts . . ." and
the evidence would not support a finding that Vanns were
"agricultural employers" as the term is defined in 29
U.S.C.A. § 1802(2) because the record was devoid of evidence that
the Vanns recruited, solicited, hired, employed, furnished, or
transported seasonal workers. Therefore, the Vanns could not be liable
for failing to keep employment records mandated by the AWPA or for
Ricketts injuries sustained from the fall from the pickup because they
were neither joint employers nor agricultural employers.
[HN2] Under 29 U.S.C.A.
§ 1842, the Vanns were under a duty to take "reasonable steps
to determine that the farm labor contractor possesses a certificate of
registration which is valid and which authorizes the activity for which
the contractor is utilized." n3 The Vanns inquired about the
certificate and Jeanette [**9] Flakes produced a certificate which
authorized the use of a 1973 Ford bus to transport workers and showed
compliance with all of the safety, equipment and insurance requirements.
Ricketts argued that the Vanns had a duty to make sure that the bus was
the only vehicle that Flakes were using [*75] to transport workers. The
court rejected this argument, finding that "this would put an
impossible burden on anyone employing the services of a farm laborer
contractor, and it is not one required by the statute or any court
decisions to which the court has been cited." Finally, the court
found no evidence that the Vanns were responsible for any negligence
involved with Ricketts' accident.
n3 [HN3] A farmer does not
have to meet the definition of a joint or agricultural employer to be
liable under 29 U.S.C.A. §
1842.
The court made substantially
the same findings as to the Bunches. Ricketts' case against the Bunches
was weakened by the fact that the Bunches did not hire the Flakes as
their labor contractor. [**10] To conclude, the court said,
"suffice it to say that the evidence favoring the Bunch defendants
with respect to each of the nine factors is even more compelling than
that reviewed in connection with the Vann motion . . . ."
Accordingly, summary judgment was granted for the Vanns and the Bunches
on all counts.
[HN4] We review a district
court's summary judgment award de novo. Drewitt v. Pratt, 999 F.2d
774, 778 (4th Cir. 1993). Summary judgment is proper when there is
no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Shealy v. Winston, 929 F.2d
1009, 1011 (4th Cir. 1991). The facts, and the inferences to be
drawn from the facts, must be viewed in the light most favorable to the
party opposing the motion. Id.
II.
A.
Ricketts seeks damages
against the Vanns and the Bunches for alleged violations of 29
U.S.C.A. § § 1821(a), (d)(1-2), and 1841(b)(1)(A) (West 1985). In
order to prevail, he must first show that the Vanns and/or the Bunches
were "agricultural employers" as defined in 29 U.S.C.A. §
1802 [**11] (2) n4 or the joint employers with the Flakes. See Howard
v. Malcolm, 852 F.2d 101, 104-05 (4th Cir. 1988). n5 [HN5] Under the
AWPA, "[a] person is responsible as an 'employer' of another where
the work 'follows the usual path of the employee,' and where as a matter
of economic reality, the employee is dependent upon that person for
their livelihood." Haywood v. Barnes, 109 F.R.D. 568, 586 (E.D.N.C.
1986) (quoting Donovan v. New
Floridian Hotel, Inc., 676 F.2d 468, 470-71 (11th Cir. 1982)).
n4 [HN6] 29 U.S.C.A. §
1802(2) (West 1985) provides: "The term 'agricultural
employer' means any person who owns or operates a farm, ranch
processing establishment, cannery, gin, packing shed or nursery, or
who produces or conditions seed, and who either recruits, solicits,
hires, employs, furnishes, or transports any migrant or seasonal
agricultural worker."
n5 [HN7] 29 C.F.R. §
500.20(h)(4)(i) (1993) defines joint employment as follows:
The term "joint
employment" means a condition in which a single individual
stands in the relation of an employee to two or more persons at the
same time. A determination of whether the employment has to be
considered joint employment depends upon all the facts in the
particular case. If the facts establish that two or more persons are
completely disassociated with respect to the employment of a
particular employee, a "joint employment" does not exist.
[**12]
Ricketts first contends that
the district court erred in not considering whether the Flakes were
independent contractors of the Vanns and the Bunches, and if the Flakes
were not independent contractors, then the Bunches and the Vanns must
have been joint employers of Ricketts.
From our reading of the AWPA
and the case law cited by Ricketts, principally Castillo v. Givens,
704 F.2d 181, 188 (5th Cir.), cert. denied, 464 U.S. 850, 78 L.
Ed. 2d 147, 104 S. Ct. 160 (1983), we find no requirement that a
court determine whether a labor contractor is an independent contractor
when evaluating whether joint employment exists. In Castillo, the Fifth
Circuit analyzed whether a labor contractor was the employee of a cotton
farmer for purposes of determining whether the contractor and the farmer
were joint employers of farm laborers. The court did not employ an
independent contractor analysis, but commented that "in the event
that [the labor contractor] were an independent contractor, this Court
could conclude that [the labor contractor] was a joint employer with the
[cotton farmer]; in this instance, [**13] the field workers would still
be employees of the [cotton farmer]." Id. at 188. This
language does not require an independent [*76] contractor analysis, nor
does it mandate the result Ricketts seeks.
B.
As previously noted, the
district court employed the test established in Haywood v. Barnes,
109 F.R.D. 568 (E.D.N.C. 1986) to determine whether the Vanns and/or
the Bunches were the joint employers of Ricketts. We adopt the Haywood
analysis, and conclude, after evaluating the facts in the light most
favorable to Ricketts, that the district court properly determined that
the Vanns and the Bunches were not the joint employers of Ricketts.
Although the Vanns leased
the property on which the melons were grown, the Vanns did not own or
lease the other facilities where the harvesting activities occurred, and
the Flakes' crew, including Ricketts, worked on land owned or leased by
other individuals. n6 Neither the Vanns nor the Bunches provided housing
for the Flakes' crew. The Vanns provided no direction for the
performance of the every day work, had no investment in equipment, n7
and exercised no control over the Flakes' employees, [**14] including
Ricketts. While working on the Vanns' leased property, the Flakes
controlled the rate and payment of wages. Finally, there was no evidence
that the Vanns ever hired, fired or modified the employment condition of
any worker.
n6 The Flakes' workers
were not bound by a contract and were free to work for other
contractors. When work could no longer be found in the area, the
workers would often go elsewhere seeking new employment.
n7 Ricketts contests this
point, arguing that the preparation of land and packaging expenses
were ignored by the district court in evaluating the third criterion.
These costs, however, are not directly associated with the labor
contractor's harvesting of the melons.
Because the Bunches never
hired the Flakes to perform labor, and Ricketts never performed any farm
labor for them, we find Ricketts' argument that the Bunches were joint
employers even less compelling. Although the Bunches' packing facilities
were used by the Flakes and the Bunches advanced money to all of the
local labor [**15] contractors, these two factors are not enough to
establish that the Bunches were joint employers with the Flakes of the
migrant workers in light of the overwhelming considerations to the
contrary. The facts clearly reflect that neither the Vanns nor the
Bunches were the joint employers of Ricketts.
Ricketts argues that the
district court left out two key considerations in its nine step
analysis: (1) whether the Bunches and the Vanns were "completely
disassociated" from the Flakes with respect to the employment of
Ricketts, and (2) whether the "service rendered [by the Flakes] is
an integral part of the alleged employer's business."
[HN8] The "completely
disassociated" argument is based on 29 C.F.R. § 500.20(h)(4)(i)
(1993), which reads in its entirety: "A determination of whether
the employment is to be considered joint employment depends upon all
facts in the particular case. If the facts establish that two or more
persons are completely disassociated with respect to the employment of a
particular employee, a 'joint employment' situation does not
exist." We find that the district court considered all the
pertinent facts on this issue and rightly concluded that the Bunches and
the Vanns [**16] were completely disassociated from Ricketts'
employment.
Ricketts' second factor,
which appears in Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d
748, 754 (9th Cir. 1979), is only one of many considerations used by
the Ninth Circuit to determine whether the defendant was the employer of
migrant farm workers for purposes of the Fair Labor Standards Act. The
court acknowledged that its list of six factors was not exhaustive and
its final determination depended on all of the relevant facts wholly
considered. The district court's use of the nine factors listed in
Haywood was sufficient to determine that the Vanns and the Bunches were
not the joint employers of Ricketts.
Furthermore, neither the
Vanns nor the Bunches were the agricultural employers of Ricketts under
the meaning of 29 U.S.C.A. § 1802(2). There is no evidence that
either [*77] family recruited, solicited, hired, employed, furnished or
transported migrant workers.
III.
Ricketts alleges that the
Vanns and the Bunches violated 29 U.S.C.A. § 1842. n8 Although
the Vanns inquired about and were shown the Flakes' valid certificate
[**17] authorizing transportation of migrant farm workers in a 1973 Ford
bus, Ricketts argues that the Vanns had an affirmative duty to inquire
whether the Flakes were authorized to transport migrant workers in the
pickup truck from which Ricketts fell. In support, Ricketts cites Howard
v. Malcolm, 852 F.2d 101 (4th Cir. 1988), where we held that § 1842
required a farmer to verify that the housing unit listed on the
contractor's certificate of authorization was in fact the unit where the
workers were staying.
n8 [HN9] 29 U.S.C.A. §
1842 (West 1985) provides in relevant part:
No person shall utilize
the services of any farm labor contractor to supply any migrant or
seasonal agricultural worker unless the person first takes
reasonable steps to determine that the farm labor contractor
possesses a certificate of registration which is valid and which
authorizes the activity for which the contractor is utilized.
This code section is
inapplicable to the Bunches since they did not contract with the
Flakes for labor.
[**18]
The Vanns complied with the
statute by determining that the Flakes had a valid certificate
authorizing the transportation of migrant farm workers. The Vanns knew
that the Ford bus was being used to transport the workers, primarily
from the packing shed to the fields. [HN10] The statute requires a
farmer to take reasonable steps to verify that a labor contractor is
authorized to transport the workers, but it does not impose an
affirmative duty on a farmer to ensure that a migrant laborer does not
ever ride in some other vehicle. Therefore, we find no violation of 29
U.S.C.A. § 1842.
IV.
Finally, Ricketts maintains
that appellees failed to act in a reasonably prudent manner as required
by North Carolina law. [HN11] Under North Carolina law, a contractee may
be liable for the acts of an independent contractor, if it is shown that
sufficient control was exercised by the contractee over the independent
contractor. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 234
(N.C. 1991). In light of our conclusion under the Haywood analysis,
we find no evidence that either the Vanns or the Bunches exerted
sufficient control [**19] over the Flakes to make them liable to
Ricketts under North Carolina law.
V.
For the reasons set forth
above, the decision of the district court is
AFFIRMED.
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