Opinion
Case No. 03-14357-CIV-LYNCH.
March 26, 2004
ORDER ON PLAINTIFF'S MOTION FOR DECLARATION OF CLASS ACTION (DE 9)
THIS CAUSE comes before this Court upon the above referenced Motion. Having reviewed the Motion, noting that the Defendant has not filed a response in opposition, and being otherwise advised in the premises, this Court finds as follows:
BACKGROUND
1. The named Plaintiffs, Messrs. Salas-Mateo and Santiago-Santos, are two Mexican nationals who came into this country to pick citrus fruit in Florida during the 2002-2003 harvest season. They and 40 co-workers were admitted into the United States under 8 U.S.C. § 1101 (a) (15) (H) (ii) of the Immigration and Nationality Act which authorizes foreign nationals to perform seasonal agricultural jobs when U.S. workers are unavailable. Such workers are generally referred to as H-2A workers after the name of the program visa.
The Defendant applied for and received a total of 38 H-2A visas.
2. The Defendant is a farm labor contractor who recruited and employed the Plaintiffs for the harvest under the H-2A program. In order to participate in that program, the Defendant filed detailed job descriptions with the U.S. Department of Labor, otherwise known as "clearance orders", that served as the employment contract between the Plaintiffs and the Defendant. The Defendant provided these workers to Bentley Bros., Inc., and Ridge Harvesting, Inc., to harvest citrus in Highlands County and nearby areas.
3. The Plaintiffs now bring suit against the Defendant, alleging that they were denied lawful compensation for their work in two general respects. For Count I the Plaintiffs allege that the Defendant violated the minimum wage provisions of the Fair Labor Standards Act, ("FLSA"), 29 U.S.C. § 206(a), by failing to supplement their piece-rate earnings in order to raise their wages to the minimum wage rate and by failing to reimburse them during the first week of their employment for facilities primarily running to the Defendant's benefit, including passport and visa-related expenses, Form I-94 issuance fees, and the full cost of travel from their home villages to the Defendant's jobsite. As a consequence, the Plaintiffs seek their unpaid minimum wage plus an additional equal amount in liquidated damages.
4. For Count II the Plaintiffs allege that the Defendant breached the terms of their employment contract, embodied in the clearance orders, by not paying the Plaintiffs 1) the adverse effect wage rate of $7.69 per hour; 2) a wage commiserate with the minimum wage provisions of the FLSA; and 3) full reimbursement for transportation and subsistence costs incurred between their respective homes and the jobsite. The terms of the clearance orders are supplied by Department of Labor regulations, specifically, 20 C.F.R. §§ 653.501, 655.102, 655.103.
5. The Plaintiffs now seek to certify a class under Rule 23, Fed.R.Civ.P., comprising of their co-workers. The Plaintiffs estimate that the class would consist of 40 members.
DISCUSSION
The Plaintiffs seek to form a class for purposes of litigating the second count of the Complaint — for breach of employment contract — rather than to litigate the Complaint as a whole. This is for good reason as the FLSA — the basis of the first count — provides an entirely different mechanism for class formation.See Cameron-Grant v. Maxim Healthcare Services, Inc., 347 F.3d 1240, 1248-49 (11th Cir. 2003) (discussing the differences between § 216(b) collective actions and Rule 23 class actions);see also, Leyva v. Buley, 125 F.R.D. 512, 514-515 (E.D. Wash. 1989) (noting this distinction in the context of a migrant laborer case). Before turning to the matter of whether the Plaintiffs state a Rule 23 class, this Court first determines the proper scope of the claims that their Rule 23 class may pursue.
Both the FLSA and H-2A regulations affect the terms of employment of a migrant farm worker, and the Plaintiffs are suing to realize the protections afforded by each. In the case ofArriaga v. Fla. Pacific Farms, LLC, 305 F.3d 1228, 1235 (11th Cir. 2002) the Eleventh Circuit addressed this overlap and relied upon the Supreme Court's rule that the "higher requirement" be applied. At issue in the Arriaga case was FLSA's requirement that an employer must pay a weekly wage "in cash or in facilities" "free and clear" of improper deductions, such that the rate is not lower than the minimum wage. The Court held that even though H-2A regulations permit employers to reimburse certain expenses, such as transportation and visa costs, halfway through the contract period, employers must comply with FLSA's higher standard that such expenses be reimbursed in the nearest pay period, i.e., the first work week. See id. at 1237.
Applying Arriaga's holding to the instant case, the Plaintiffs may not sue under Count II for constructive underpayment as such a claim falls under the scope of Count I for FLSA violations. However this particular claim appears to be the only instance of overlap where the FLSA imposes the higher standard. The Plaintiffs' other claims are governed by their employment contract and H-2A regulations, and as a result, may be brought under Count II. For example, the Plaintiffs claim that they "were not paid at least the applicable adverse effect wage rate of $7.69 per hour for their labor." Department of Labor regulation 20 C.F.R. § 655.102 (b) (9) sets forth the workers' rate of pay. For a worker paid by the hour, subsection (i) thereof provides that he shall receive "at least the adverse effect wage rate in effect at the time the work is performed, the prevailing hourly wage rate, or the legal federal or State minimum wage rate, whichever is higher." Subsection (ii) thereof ensures that workers paid on a piece rate basis receive the equivalent of a minimum wage. To this extent H-2A regulation exceeds or provides the same degree of protection as the FLSA. Secondly the Plaintiffs may pursue their full transportation benefits, as provided by 20 C.F.R. § 655.102, under Count II.See Arriaga, 305 F.3d at 1246.
This Court presumes that in this instance the claimed adverse effect wage rate is highest.
This Court now turns to the requirements of certifying a class for purposes of litigating Count II. Rule 23(a) sets out the prerequisites to a class action, permitting its formation:
only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
The Plaintiffs meet their burden of demonstrating these prerequisites.
To begin with, the Plaintiffs' estimate of the putative class size as around 40 workers is sufficiently large to render joinder impracticable. See Brown v. SCI Funeral Services of Fla., Inc., 212 F.R.D. 602, 604 (S.D. Fla. 2003), Martinez v. Mecca Farms, Inc., 213 F.R.D. 601, 605 (S.D. Fla. 2002). Moreover the geographic dispersion of the class members as well as their relatively small individual damages claims and the fact that they may not be familiar with the U.S. legal system or the English language further supports a finding that joinder would be impracticable. See Leyva, 125 F.R.D. at 515 (citingRodriguez v. Berrybrook Farms, Inc., 672 F.Supp. 1009 (W.D.Mich. 1987)).
Rule 23(a) (2) next requires that amongst the putative class members there be some degree of commonality as to a question of law or fact. See Brown, 212 F.R.D. at 604, Martinez, 213 F.R.D. at 605. There appears to be little difference between the class members as to their employment history with the Defendant and their claims for relief. With respect to Count II claims, the Plaintiffs allege that the Defendant, pursuant to a common course of conduct, neither paid the proper wage rate nor reimbursed them for their full transportation costs. See Leyva, 125 F.R.D. at 515-16. Rule 23(a) (3) requires that the claims of the class representatives by typical of the claims of the class members, meaning that the they share the same interest and suffer the same injury. Because all of the purported class members, including the named Plaintiffs, are so similarly situated, this requirement is likewise met.
Lastly, Rule 23(a) (4) requires that the interests of the representative parties align with those of the class members and that they be able to fairly and adequately protect the interests of the class. See Brown, 212 F.R.D. at 605, Martinez, 213 F.R.D. at 606-07. This Court discerns no interests of the named Plaintiffs that would be antagonistic to the class members; rather, they find themselves in more or less the same situation as the co-workers with whom they seek to form the class. Counsel for the Plaintiffs, Mr. Schell, also demonstrates that he has litigated several actions on behalf of migrant workers, many of which were class actions or involved the H-2A program, and would be able to front the costs of litigation.
Having found that the Rule 23(a) prerequisites are satisfied, this Court must next determine which form of class certification is appropriate. Rule 23(b) sets out several alternative types of class actions, and the Plaintiffs seek certification under Rule 23(b) (3) for actions where commonality of issues predominate amongst the several class members and where the class action medium is the most efficacious means of adjudicating the controversy. See Brown, 212 F.R.D. at 605-06. The class claims in this case do predominate over any questions affecting the individuals members, and in fact, the Plaintiffs' claims parallel those of the putative members and are subsumed within the class's claims.
Moreover, the Plaintiffs doubt whether any individual class member would want to proceed independently given the circumstances. No other related litigation is pending, and litigation in this forum is perhaps most appropriate given that both the Defendant and the area of harvest are found in this district. Creation of a class action would also serve the interests of judicial administrative efficiency. While the amount of back wages owing to each individual member may differentiate, the basis for calculating those wages — namely the terms of the clearance orders — remains common amongst all the members. In comparison individual litigation would entail too much redundancy and duplication of effort to be practical and would deny the class members the benefits of the class action. See Leyva, 125 F.R.D. at 518.
CONCLUSION
The Plaintiffs have satisfied the requirements of Rule 23(a) and are due class certification under Rule 23(b) (3). Accordingly, this Court certifies the class as consisting of:
All individuals admitted to the United States pursuant to Section 101(a) (15) (H) (ii) (a) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a) (15) (H) (ii) (a) ("H-2A workers") who were employed by Jesus B. Ochoa to harvest citrus fruit during the 2002-03 Florida citrus harvest.
However this Order shall not be construed as creating a class with regard to Count I or issues falling within the scope of a proper FLSA action.
Based on the foregoing, it is hereby,
ORDERED AND ADJUDGED that the Plaintiffs' Motion for Declaration of a Class Action is GRANTED, and pursuant to Rule 23(c) (1) (B) a class is certified as defined above, with the named Plaintiffs acting as the representative parties and their counsel, Mr. Schell, serving as class counsel. It is further,
ORDERED AND ADJUDGED that within thirty (30) days of the date of this Order the Plaintiffs shall notify all potential class members of the instant class action in compliance with Rule 23(c) (2) (B) and file a certification with this Court of such notice, describing in detail the notification provided.