Summary of a Recent
Judicial
Development in
Labor
Workers Entitled to Compensation for Time Spent Waiting for Ice to Melt From Fields
Walt McCarterNational AgLaw Center Research Associate
Summary of Decision
In Gonzalez v. Tanimura and Antle, Inc., No. CV 06-2485-PHX-MHM, 2008 WL 4446536 (D. Ariz. Sept. 30, 2008), the United States District Court for the District of Arizona held that plaintiff-agricultural workers were entitled to compensation for time spent waiting for ice to thaw from fields before they were able to begin harvesting crops, and thus granted the plaintiffs' motion for summary judgment on their claims that their employer violated the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and the Fair Labor Standards Act (FLSA).
Background
Plaintiff brought an action on behalf of himself and other seasonal agricultural workers who worked for the defendant Tanimura and Antle, Inc. under the AWPA and the FLSA to recover back pay for time spent waiting for ice to thaw in the winter mornings. Id. at *1-2. The defendant provided optional bus rides to the fields, which were anywhere from ten to forty miles away, but in the winter months the bus departure time could be delayed up to two or three hours waiting for ice to melt from the fields. Id. The plaintiffs were not required to wait in the vicinity of the parking lot, but most did so. Id. at *2. Some workers would go to a nearby store for coffee or breakfast, while others would play cards, dice, or soccer while waiting for the new departure time. Id. The defendant did not keep records of the time its employees spent waiting on the bus. Id. The defendant moved for summary judgment, arguing that the wait time was not compensable, and the plaintiffs filed a cross-motion for summary judgment. Id. at *8.
Arguments
Plaintiffs argued that they should have been compensated for the time they spent waiting both in the parking lot and in the field because the defendant hired them and then set a start time that, in the winter months, often resulted in having to wait in the parking lot or in the field before they could perform the harvesting for which they were hired. Id. They also argued that the defendant violated the AWPA by not including their rate of pay on their pay stubs when they were compensated under a group production incentive (production bonus) rate. Id. at *14.
Defendant argued that the wait time was not compensable work because the ice was an act of God beyond its control, because the parties had agreed that wait time would not be compensated, and because the plaintiffs were not required to wait. Id. at *8. In response to the AWPA claim, it argued that disclosure of the workers' group incentive bonus rate was not required in its itemized pay statements, and furthermore the rate was disclosed to all workers at the beginning of the season and was posted on company buses and bulletin boards. Id. at *14.
Analysis and Holdings
FLSA claim
Under the FLSA, employers must pay employees for all hours worked, including the time it engages employees to wait. Id. at *8. The court explained that "time spent waiting is compensable when the waiting time is spent primarily for the benefit of the employer and its business," and stated that in determining who is benefitted by wait time, courts consider two factors: "(1) the agreement between the parties; and (2) the degree to which the employee is free to engage in personal activities." Id. The court rejected the defendant's argument that the ice was an act of God, because it was foreseeable as those conditions were common in the Yuma area during winter months, and because the icy conditions were of no greater severity than usual and could not compare with an overwhelming, unpredictable event such as an earthquake, flood, or tornado. Id. at *9. The court also found that there was no evidence of an agreement between the parties that wait time was not compensable, and pointed out that an agreement to waive statutory wages under the FLSA is not permissible. Id. at *10-11.
Considering the plaintiffs' personal activities during the wait time, the court stated that the proper inquiry was "whether an employee is so restricted during on-call hours as to be effectively engaged to wait." Id. at *11. The Ninth Circuit has enumerated a list of factors to consider in making that determination, including: "(1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee's movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether the use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during call-in time." Id. (citing Brigham v. Eugene Water & Elec. Bd., 357 F.3d 931, 936 (9th Cir. 2004)) The court found that many of those factors weighed heavily in the plaintiffs' favor, and granted their motion for summary judgment as to their FLSA claim. Id. at *12-13.
AWPA claim
The court explained that the AWPA requires agricultural employers to provide to each worker, for each pay period, an itemized written statement that includes the basis on which wages are paid, including hours worked, total pay period earnings and withholdings. Id. at *14. The court held that because the group production incentive rate was a basis on which wages were paid, it should have been included on pay stubs when applicable, and that merely notifying employees or posting the rate on buses and bulletin boards was not sufficient to satisfy the AWPA requirements. Id. at *15. The court further found that the defendant had violated the AWPA by not keeping records of the time employees spent waiting for the ice to melt, because it concluded that the wait time was compensable and the AWPA requires agricultural employers to maintain accurate employee records of time worked. Id. The court therefore granted the plaintiffs' motion for summary judgment on their AWPA claim. Id.
The case was decided on September 30, 2008.