Summary of a Recent
Judicial Development in
Labor

Court Certifies H-2A Collective Action in Suit Against
Tomato Growers for Failure to Pay Worker Expenses

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Perez-Benites v. Candy Brand, L.L.C., No. 07-CV-1048, 2008 WL 4809105 (W.D. Ark. Oct. 31, 2008), the United States District Court for the Western District of Arkansas granted H-2A workers' request for an order conditionally certifying Count I of their amended complaint as a collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219; granted workers' request to authorize the issuance of workers' proposed notice to potential opt-in plaintiffs; and granted workers' request that the court issue an order requiring the defendants to provide all addresses, telephone numbers, social security numbers, birthdays, and passport numbers for the collective action members. The defendants did not oppose any of the workers' requests.

Background

Three Mexican farm workers entered the United States in 2005 with H-2A visas to harvest and pack tomatoes for the defendants. Id. at *1. The workers filed the instant lawsuit against the defendants for violating the FLSA, as well as state and federal contract law. Id. They claimed that the defendants required them to bear the costs associated with obtaining a passport and visa, and transportation and border crossing expenses. Id. Because these expenses, allegedly, only benefited the defendants, the workers claimed the expenses must be considered de facto wage deductions, which would drive their wages below the federal minimum wage. Id. Additionally, the workers claimed the defendants failed to pay overtime wages when they worked over forty hours per week. Id. The workers were suing on behalf of themselves and all H-2A temporary agricultural workers employed by the defendants between June 1, 2004 and the date of judgment. Id.

Arguments

The workers requested a court order to conditionally certify Count I of their amended complaint as a collective action under the FLSA, 29 U.S.C. §§ 201-219. Id. They also requested authorization of the issuance of their proposed notice to potential opt-in plaintiffs. Id. Finally, the workers requested the court to provide all addresses, telephone numbers, social security numbers, birthdays, and passport numbers for the collective action members. Id.

Analysis and Holdings

To certify a class under the FLSA, the instant court believed the most prudent analysis was done in two stages: the notice stage, and the opt-in stage. Id. at *2. During the notice stage, the court looks exclusively at the pleadings and affidavits, and determines whether notice should be given to potential class members. Id. During the opt-in stage, the court determines whether the class should be maintained through the trial. Id. The most important factor examined by the instant court was whether the workers' affidavits and pleadings demonstrated that they were similarly situated to the potential collective action members. Id. at *3. Because the plaintiffs alleged that they worked with the potential collective action members, were not paid minimum and overtime wages like the other potential members, lived in the same apartments provided by the defendants with the other potential members, and traveled from Mexico to the defendants' operations in Arkansas with the other potential members, the court was satisfied that the plaintiffs met their burden of showing that conditional certification was proper. Id. Likewise, the court granted the workers' proposed notice and proposed information request. Id. at *3-4.

The case was decided on October 31, 2008.