Martinez-Mendoza v. Champion International Corp. , 340 F.3d 1200 ( 2003 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________ ELEVENTH CIRCUIT
AUGUST 5, 2003
No. 02-12171 THOMAS K. KAHN
CLERK
_____________
D. C. Docket No. 00-00034 CV-4RV-SMN
APOLINAR MARTINEZ-MENDOZA,
ELISEO MORALES-CABALLERO, et al.,
Plaintiffs-Appellants,
FRANCISCO PEREZ-DELGADO,
DELFINO CAMACHO-LUNA, et.al.,
Plaintiffs,
versus
CHAMPION INTERNATIONAL CORPORATION,
Defendant-Appellee,
F & K ENTERPRISES,
ELLER & SONS, et. al.,
Third-Party Defendants.
____________
Appeal from the United States District Court
for the Northern District of Florida
____________
(August 5, 2003)
Before TJOFLAT and BLACK, Circuit Judges, and NANGLE*, District Judge.
___________________
* Honorable John F. Nangle, United States District Judge for the Eastern District of Missouri,
sitting by designation.
TJOFLAT, Circuit Judge:
In this case, six migrant employees of a farm labor contractor, suing on
behalf of themselves and other migrant workers under the Fair Labor Standards
Act, 29 U.S.C. §§ 201-21,1 and the Migrant and Seasonal Agricultural Worker
Protection Act, 29 U.S.C. §§ 1801-72,2 seek the monetary relief granted by the
provisions of those acts from a manufacturer of paper products who hired the
contractor to plant tree seedlings in the manufacturer’s forests. According to these
employees,3 the manufacturer and the farm labor contractor were “joint
employers” and therefore liable for such relief. On cross-motions for summary
judgment, the district court held that the manufacturer was not a joint employer.
Then, without determining whether the case could proceed as a class action, the
court entered a final judgment for the manufacturer. Plaintiffs now appeal. In
1
The relevant part of the Fair Labor Standards Act, 29 U.S.C. § 216(b), provides that
“[a]n action to recover [unpaid minimum wages or overtime compensation] may be maintained
against any employer . . . by any one or more employees for and in behalf of himself or
themselves and other employees similarly situated.”
2
The relevant part of the Migrant and Seasonal Agricultural Worker Protection Act, 29
U.S.C. § 1854, in subsection (a), authorizes “[a]ny person aggrieved by a violation of” the act to
file suit in a United States district court. Subsection (c) authorizes the court to award “damages
up to and including an amount equal to the amount of actual damages, or statutory damages of up
to $500 per plaintiff per violation, or other equitable relief.” If the court certifies the suit as a
class action, the court “shall award no more than the lesser of up to $500 per plaintiff per
violation, or up to $500,000 or other equitable relief.”
3
For ease of discussion, we refer to the six migrant employees as “named plaintiffs” or
“plaintiffs.”
2
addition to contending that the district court should have granted their motion for
summary judgment on the joint employer issue, they ask that the case be remanded
with the instruction that the district court consider whether the case should
proceed as a class action on behalf of the class plaintiffs. We affirm the district
court’s determination that the manufacturer was not plaintiffs’ joint employer.
Concluding, however, that the court erred in refusing to address the class action
issues the case presented, we remand the case for further consideration of those
issues.
I.
A.
The manufacturer in this case is Champion International Corporation
(“Champion”), formerly a leading producer of paper products in the United States.4
As part of its operations, Champion maintained approximately five million acres of
forest land.5 After harvesting, it regenerated its forests through a combination of
machine and hand planting.6 Farm labor contractors (“FLCs”), who were registered
4
Champion merged into International Paper Corporation in 2000.
5
While the record is not clear, we assume that Champion either owned or leased such
acreage. We refer to such acreage as if Champion owned it.
6
Champion also naturally regenerated parts of its harvested forests.
3
with the United States Department of Labor, provided Champion with the laborers
for the hand planting.7 Between 1996 and 1999 – the time period during which the
six named plaintiffs and their class members allegedly worked for Champion –
Champion contracted with forty-eight FLCs to plant tree seedlings by hand.8 One
of the FLCs was F & K Enterprises, the employer of the named plaintiffs.9 F & K,
which was headquartered in Hermitage, Arkansas, was a “leading” forestry FLC.
With thirty-five to forty crews at its disposal, it provided laborers for dozens of
customers in the forestry industry – large corporations, federal and state
governments, and private land owners. F & K’s crews had an average of eight to
fourteen laborers and one foreman, who served as F & K’s on-site representative.
The foreman reported to one of six area supervisors, who, in turn, reported to F &
7
An FLC is “any person, other than an agricultural employer, an agricultural association,
or an employee of an agricultural association, who, for any money or other valuable
consideration paid or promised to be paid [recruits, solicits, hires, employs, furnishes, or
transports] any migrant or seasonal agricultural worker.” 29 U.S.C. § 1802(6), (7). Among its
many obligations, an FLC must obtain a certificate from the Secretary of Labor authorizing it to
perform its duties. 29 U.S.C. § 1811(a).
8
Champion would enter into a contract after soliciting bids from the FLCs it deemed
qualified to do the work. Before submitting their bids, the FLCs would review Champion’s
planting specifications and inspect the tract of land to be planted to determine the condition of
the soil. In some locations, Champion chose not to solicit bids; instead, it negotiated a contract.
This was never the case with F & K; it obtained contracts with Champion through the bidding
process.
9
Although the record is not clear, F & K apparently employed other members of the
plaintiff class.
4
K’s president in Hermitage.
F & K employed hundreds of laborers during the planting seasons, recruiting
most of them from Mexico. F & K would anticipate the number of laborers it
would need to recruit by projecting its customers’ requirements.10 Once it obtained
a planting contract, F & K would allocate from its pool of laborers the number
needed to meet its contractual obligations. In the same way, F & K would
anticipate the number of vehicles it would need to transport its laborers to and from
the job site and the number of planting tools and seedling bags necessary to do the
work.
The six named plaintiffs are migrant agricultural workers.11 They contend
that at various times between 1996 and 1999, they were employed by F & K to
plant tree seedlings on land owned by Champion.12 All six came from Mexico to
10
F & K never recruited any workers specifically to work on Champion’s property.
11
Congress defines “migrant agricultural worker” as “an individual who is employed in
agricultural employment of a seasonal or other temporary nature, and who is required to be
absent overnight from his permanent place of residence.” 29 U.S.C. § 1802(8)(a).
12
In addition to planting tree seedlings, its contracts with Champion may have required F
& K to engage in “brush clearing and pre-commercial thinning.” The only relevant activity in
this case, and for purposes of this appeal, is the planting of tree seedlings; hence, this opinion
makes no further reference to these other activities.
5
the United States through the H-2B temporary visa program.13 F & K picked them
up at the Mexican-American border and transported them to Arkansas, where they
received training on handling and planting the seedlings. After that, F & K sent
them to a work site.14 At the end of the planting season, which usually lasted four
months, from November/December to February/March, F & K took them back to
the Mexican-American border.
During the time they worked for F & K, the named plaintiffs worked in
forests owned by various F & K customers in several states. Some were forests
owned by Champion in Alabama, Tennessee, and Florida. This work was governed
by six contracts that Champion and F & K entered into between 1996 and 1999.
Given that the contracts with Champion amounted to a mere ten percent of F & K’s
business, however, plaintiffs spent only a small part of their time laboring on
Champion land.15 Moreover, their limited time there was unmemorable. Only
13
The term “H-2B” is derived from the section of the Immigration and Nationality Act
that authorizes the admission of aliens to perform unskilled work of a temporary nature. 8
U.S.C. § 1101(a)(H)(ii)(b).
14
During the planting season, the named plaintiffs usually worked at several sites on land
owned or managed by different foresters. In most cases, they did not know the identity of the
forester. All they knew was that they were responsible to the F & K foreman supervising their
work. They relied on him for their instructions and for their transportation to and from the job
site.
15
As detailed below, plaintiffs spent the vast majority of their time planting seedlings for
the other landowners with whom F & K had contracts:
(1) Apolinar Martinez-Mendoza worked for F & K for six consecutive planting seasons in
6
three of plaintiffs are certain they were ever on Champion’s land, and they say this
only because they recall seeing Champion logos on trucks, boxes, or apparel. The
three remaining plaintiffs are sure that they planted seedlings in Champion forests
solely to the extent that they recall working in Alabama, Tennessee, or Florida.16
None of the named plaintiffs ever spoke with Champion personnel.17
the latter half of the 1990's. He planted seedlings in several states for many forest owners with
whom F & K had contracted. During the 1996-97 planting season, he worked nearly two months
on Champion land. The next season he worked eight days on Champion land. In 1998-99 he
spent three or four days on Champion land. The remaining three seasons he did not work on
Champion land at all.
(2) Eliseo Morales-Caballero worked for F & K for three seasons, likewise planting
seedlings in several states and for many landowners. He performed no work on Champion land
during the first and last of those seasons. In the second season, 1996-97, he worked on
Champion land in Florida for a few weeks, at most.
(3) Francisco Javier Miranda-Esquivel worked for F & K two seasons, similarly planting
seedlings in several states for other landowners. He only performed work for Champion in his
second season, 1996-97, and only for several weeks of that planting season.
(4) Paulo Morales-Martinez worked for F & K for two seasons, similarly planting
seedlings in several states for other landowners. He only performed work for Champion in his
second season, 1997-98, and only for two months, at most, of that planting season.
(5) Rogelio Morales-Martinez worked for F & K for six consecutive planting seasons in
the latter half of the 1990's. He planted seedlings in several states for many forest owners, but
only worked on Champion land for parts of two seasons – 1996-97 and 1997-98.
(6) Francisco Perez-Delgado worked for F & K for two seasons. He planted seedlings in
several states and for other landowners, working on Champion land for eleven days during the
1997-98 planting season, and several weeks of the 1998-99 planting season.
16
The three plaintiffs who “knew” they were on Champion land only guessed at the time
that Champion owned the land.
17
As discussed infra, note 30, the only communication between plaintiffs and Champion
occurred on one occasion when a Champion employee instructed a group of laborers (including
at least one plaintiff) on the proper handling of plant seedlings.
7
B.
As noted, plaintiffs and the members of their class seek the recovery of the
minimum wages and overtime compensation provided by the Fair Labor Standards
Act (“FLSA”) and the damages provided by the Migrant and Seasonal Agricultural
Worker Protection Act (“MSAWPA”).18 After extended discovery, parties filed
cross-motions for summary judgment as to whether Champion was plaintiffs’ joint
employer under either statute. The district court deferred its consideration of the
class action certification issues pending its disposition of the cross-motions for
summary judgment.
In presenting their motion, plaintiffs relied heavily upon the provisions
contained in the six contracts mentioned above – specifically the planting
specifications. They argued that the precision with which they had been drafted
showed that Champion ultimately controlled every facet of their work, such as to
render it their joint employer.19 Champion’s position, on the other hand,
18
Champion brought third-party actions for indemnification against F & K and the other
farm labor contractors who employed plaintiffs and their class members. These third-party
claims are not before us; hence, we do not discuss them.
19
While each of the six contracts were distinct, they shared many of the same provisions.
For instance, the contracts specified the general time of year in which the planting was to be
done, the method of calculating payment to F & K (which depended on proper planting), and the
general requirements for planting seedlings, such as (1) the handling of the seedlings, (2) the
spacing of the seedlings, (3) the methods for planting the seedlings, and (4) the types of tools to
be used.
As Champion correctly observes, the contractual specifications for planting seedlings
8
emphasized that there was no interaction between Champion and plaintiffs, and
that the evidence clearly indicated that F & K was their sole employer. As for
plaintiffs’ point about the specifications, Champion contended that the contracts
with F & K were the products of arms’ length negotiations, and that the planting
specifications represented industry standards.20
The district court granted Champion’s motion for summary judgment (and
simultaneously denied plaintiffs’ motion). The court thereafter gave Champion
final judgment. It did so without ruling on the class certification issues the parties
had raised.
Plaintiffs now appeal, contending that the court should have granted it
summary judgment on the ground that Champion was a joint employer as a matter
of law.21 They also contend that the court should have addressed the class
were similar to the specifications utilized by other forestry companies, the United States
Department of Agriculture, state agencies, and various industry associations.
20
Moreover, Champion asserted, the contracts clearly indicated that F & K was
plaintiffs’ sole employer. In every contract, F & K alone agreed to furnish the labor, supervision,
equipment, and transportation necessary to fulfill the planting requirements. Most contracts also
stated that Champion had no role in selecting F & K’s laborers, and that these laborers were not
“subject to any orders, directions or control of Champion.”
21
In reviewing a district court’s grant of summary judgment, we consider the evidence in
the light most favorable to the party against whom judgment has been granted and, doing so,
determine whether any material facts remain to be litigated. See Squish La Fish, Inc. v. Thomco
Specialty Prods., Inc., 149 F.3d 1288, 1290 (11th Cir. 1998). In this case, both parties filed
motions for summary judgment, thus representing to the district court that the material facts are
not disputed. We agree with their representations. Our task therefore, as we explain in part III, is
9
certification issues. We address their contentions in turn.
II.
In 1983, Congress enacted the Migrant and Seasonal Agricultural Worker
Protection Act “to remove the restraints on commerce caused by activities
detrimental to migrant and seasonal agricultural workers . . . and to assure
necessary protections for migrants and seasonal agricultural workers . . . .” 29
U.S.C. § 1801. The MSAWPA requires agricultural employers to register with the
government, maintain employment records for workers, and comply with various
compensation, housing, and transportation provisions.22 See 29 U.S.C. §§ 1811-44.
Anyone aggrieved as a result of an employer’s failure to discharge these
responsibilities may bring a private right of action in a United States district court,
for both legal and equitable relief. 29 U.S.C. § 1854(a), (c).23
Champion’s liability under the MSAWPA, and the FLSA as well, depends
to determine whether the circumstantial facts support the district court’s ultimate finding that
Champion was not the named plaintiffs’ employer as alleged in the complaint.
22
The MSAWPA defines “agricultural employer” as “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.” 18 U.S.C. § 1802(2).
23
See supra notes 1 & 2.
10
on whether Champion “employed” plaintiffs. The definition of “employ” is the
same under both statutes: an entity “employs” a person if it “suffers or permits” the
individual to work.24 See 29 U.S.C. § 203(g); 29 U.S.C. § 1802(5). “An entity
‘suffers or permits’ an individual to work if, as a matter of economic reality, the
individual is dependent on the entity.” Charles v. Burton, 169 F.3d 1322, 1328
(11th Cir. 1999) (citation omitted). Since joint employment relationships – where a
single individual stands in the relation of an employee to two or more persons at
the same time – are common in agriculture, see 29 C.F.R. § 500.20(h)(5),25 both
statutes deliberately make “it clear that a worker can be economically dependent
on, and thus jointly employed by, more than one entity at the same time.” 26
Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996).
24
In a case brought under both statutes, as here, we held that in enacting the statutes,
Congress expressly rejected the common-law definition of employment. Antenor v. D & S
Farms, 88 F.3d 925, 929 (11th Cir. 1996).
25
In 1997, the Department of Labor amended its regulation in an attempt to clarify the
“joint employment” definition. See 62 Fed. Reg. 11734 (1997) (codified at 29 C.F.R. § 500.20(1997)). This court, as required by Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 81 L.E. 2d 694 (1984), accords significant weight to the
statutory interpretation of the executive agency charged with implementing the statute being
construed, particularly where, as here, that interpretation is incorporated in a formally published
regulation. Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1507 (11th Cir. 1993).
26
The federal regulation states that the joint employer doctrine is a “central foundation”
of the MSAWPA because it is “the best means” to fulfill the purpose of the act, which is “to
reverse the historical pattern of abuse and exploitation of migrant and seasonal farm workers.”
29 C.F.R. § 500.20(h)(5). The joint employer doctrine effects this purpose by protecting “all
those hired by middlemen to toil in our nation’s fields, vineyards, and orchards.” Caro-Galvan,
993 F.2d at 1505 (citation and internal quotation mark omitted).
11
Moreover, “even if a farm labor contractor is found to be a bona fide
independent contractor, this status does not as a matter of law negate the possibility
that an agricultural employer may be a joint employer of the [laborers] together
with the farm labor contractor.” 29 C.F.R. § 500.20(h)(5)(ii) (internal quotation
mark omitted). If, as a matter of economic reality, a laborer is dependent upon both
the FLC and the agricultural employer, then a joint employment relationship exists,
and the laborer will be considered an employee of both entities. See Antenor, 88
F.3d at 930. On the other hand, if the two entities are commonly disassociated with
respect to the employment of a particular employee, a joint employment situation
does not exist. See 29 C.F.R. § 500.20(h)(5).
Ultimately, the determination of whether a laborer furnished by a FLC was
economically dependent on, and consequently jointly employed by, an agricultural
employer depends upon all the facts and circumstances in the particular case. See
Antenor, 88 F.3d at 932. Thus, “the focus of each inquiry must be on each
employment relationship as it exists between the worker and the party asserted to
be a joint employer.” Id. (citation and quotation marks omitted). The drafters of
the MSAWPA regulations, and this court in Charles, considered several factors in
making such a determination:
(1) whether the agricultural employer has the power, either alone or
12
through the FLC, to direct, control, or supervise the worker or the
work performed (such control may be either direct or indirect, taking
into account the nature of the work performed and a reasonable degree
of contract performance oversight and coordination with third parties);
(2) whether the agricultural employer has the power, either alone or in
addition to another employer, directly or indirectly, to hire or fire,
modify the employment conditions, or determine the pay rates or the
methods of wage payment for the worker;
(3) the degree of permanency and duration of the relationship of the
parties, in the context of the agricultural activity at issue;
(4) the extent to which the services rendered by the worker are
repetitive, rote tasks requiring skills which are acquired with relatively
little training;
(5) whether the activities performed by the worker are an integral part
of the overall business operation of the agricultural employer;
(6) whether the work is performed on the agricultural employer’s
premises, rather than on premises owned or controlled by another
business entity; and
(7) whether the agricultural employer undertakes responsibilities in
relation to the worker which are commonly performed by employers,
such as preparing and/or making payroll records, preparing and/or
issuing pay checks, paying FICA taxes, providing workers’
compensation insurance, providing field sanitation facilities, housing
or transportation, or providing tools and equipment or materials
required for the job (taking into account the amount of the
investment).
See 29 C.F.R. § 500.20(h)(5)(iv)(A)-(G); Charles, 169 F.3d at 1328-29.
These factors guide our analysis of the economic reality in the case at hand,
with the caveat that no one factor is dispositive. In entertaining and assessing the
evidence relevant to the inquiry called for by a given factor, the question the
district court must ask itself is whether such evidence, considered as a whole,
13
supports (or fails to support) the laborer’s claim that he is economically dependent
on the putative employer, in this case Champion.27 The facts the court finds at the
end of each inquiry become pieces of circumstantial evidence which, together,
yield inferentially one of two ultimate facts: joint employment exists or it does
not.28 Because the laborer has the burden of proof, to prevail he must establish the
joint-employment inference by a preponderance of the evidence. In reviewing the
district court’s findings of fact with respect to the factors it examines, we give the
court the benefit of the clearly erroneous rule. Whether those findings – the
circumstantial facts – support the ultimate fact the court finds is a question of law,
which we review de novo. Aimable v. Long and Scott Farms, 20 F.3d 434, 440
(11th Cir. 1994).
A.
1. Whether Champion had the power, either alone or through F & K, to direct,
control, or supervise the laborers.
27
In entertaining and assessing the evidence with respect to a factor, the court is, in
effect, conducting a miniature bench trial.
28
Because the laborer, as the plaintiff, has the burden of proof, the court may, given the
circumstantial evidence, refrain from finding the ultimate fact. In other words, the court may
simply conclude that the laborer has failed to satisfy his burden of proof.
14
We have traditionally divided this factor into two concepts: first, the nature
and degree of control of the laborers, and second, the degree of supervision over
their work. See, e.g., Charles, 169 F.3d at 1329-31; Antenor, 88 F.3d at 933-35;
Aimable, 20 F.3d at 440-42. As for the first concept, we have observed that control
arises when the alleged employer “goes beyond general instructions, such as how
many acres to pick in a given day, and begins to assign specific tasks, to assign
specific workers, or to take an overly active role in the oversight of the work.”
Aimable, 20 F.3d at 441. An alleged employer takes an “overly active” role when
it decides such things as (1) for whom and how many employees to hire; (2) how to
design the employees’ management structure; (3) when work begins each day; (4)
when the laborers shall start and stop their work throughout the day; and (5)
whether a laborer should be disciplined or retained. Charles, 169 F.3d at 1329.
“Agricultural decisions – decisions which only indirectly affect[] the number of
workers necessary to harvest the land – cannot be likened to ‘control’ in the
FLSA/MSAWPA sense.” Aimable, 20 F.3d at 441.
In this case, it is undisputed that none of these indicia of control are present.
Champion did not – and could not – assign laborers or tasks, dictate hiring
decisions, design the laborers’ management structure, govern the laborers’ work
15
schedule, or implement laborer discipline.29 Despite this, plaintiffs repeat the
argument they addressed to the district court: Champion’s “exceptionally precise”
planting specifications provided the roots for a “pervasive regime of control.” In
plaintiffs’ view, these specifications – in covering (1) the handling of the seedlings,
(2) the spacing of the seedlings, (3) the methods for planting the seedlings, and (4)
the types of tools to be used in planting – left “virtually nothing” to F & K’s
discretion. In short, Champion totally controlled the manner in which the
laborers’ did their work.30 We are unpersuaded for several reasons.
First, the facts clearly refute the claim that Champion controlled plaintiffs’
work. Plaintiffs concede that they neither saw nor relied on the planting
specifications contained in F & K’s contracts with Champion in any way. In fact,
they were completely unaware of the specifications. Each plaintiff was trained
29
Plaintiffs do dispute one indicia. They contend that Champion’s contractual right to
stop the seedling planting when soil conditions were poor – due, for example, to “adverse”
weather – shows that Champion had the power to direct the starting and stopping of the laborers’
work throughout the day. We disagree. The power to halt planting based on poor soil conditions
is a general agricultural decision, which is quite distinct from the non-agricultural situation in
Antenor – where a grower suspended work to verify that all the workers were in compliance with
immigration laws – that plaintiffs rely on for support.
30
In further support of their claim that Champion had a “pervasive regime of control,”
plaintiffs cite to one instance in which a Champion employee instructed a group of laborers on
how not to bend the plants while handling and planting them. While observing the obvious –
that one instance does not constitute a regime, much less a pervasive one – we note that proper
planting and handling techniques are agricultural decisions that do not amount to control under
the FLSA or MSAWPA.
16
solely by F & K according to F & K’s planting methods, which met or exceeded
Champion’s specifications.31 F & K’s high planting standards allowed plaintiffs to
be transferred from forest to forest without the need for retraining. Indeed, other
than occasional differences in spacing requirements, plaintiffs planted the same
way regardless of whose land they were planting. Champion’s specifications can
therefore hardly be said to have controlled their behavior.32
Second, the drafting of planting specifications is unquestionably an
agricultural decision which does not constitute the type of “control” that the FLSA
and MSAWPA address. Third, plaintiffs’ argument runs directly counter to the
comments the Department of Labor made in promulgating its regulations:
It should be noted that indirect control sufficient to
indicate the existence of an employment relationship
between a grower and an a FLC’s crewmembers would
not be established solely by contractual terms through
which the grower’s ultimate standards or requirements for
31
Champion’s planting specifications were largely a matter of common sense to F & K
and the other FLCs with whom Champion dealt. The specifications were industry standard and
quite similar to the planting specifications made part of virtually all of F & K’s other hand-
planting contracts. It is therefore not surprising that F & K, which focused its work on the
forestry industry, would have its own planting specifications that at least matched Champion’s.
32
Plaintiffs advance a fallback control argument, that Champion’s planting specifications
slowed their work and thereby lowered their wages. The evidence unequivocally establishes,
however, that F & K’s contracts with Champion were the products of arms’ length negotiations.
F & K was aware of the planting specifications each time it chose to bid on a Champion
proposal. Thus, before formulating its price, F & K assessed the possible negative effects the
specifications might have on the laborers’ pay and therefore its profits. Plaintiffs are accordingly
incorrect in their assertion that Champion controlled their wages.
17
the FLC’s performance are defined (e.g., the grower’s
specification of the size or ripeness of the produce to be
harvested, or of the date for the FLC’s completion of the
job). Such stated performance standards or objectives –
which are common in contracts for services in the
agricultural industry and in other contexts – would not, in
themselves, constitute indirect control of the work by the
person for whose benefit the services are to be performed
(e.g., the grower).
Migrant and Seasonal Agricultural Worker Protection Act, 62 Fed. Reg. 11,734,
11,739-40 (March 12, 1997). Here, contrary to the position the Department takes
in its regulations, plaintiffs attempt to establish control solely on the basis of the
contract specifications that set F & K’s performance standards. We agree with the
district court; the specifications fail as an exclusive element of control.
As for the second concept, the degree of supervision over the laborers, “it is
well settled that supervision is present whether orders are communicated directly to
the laborer or indirectly through the contractor.” Charles, 169 F.3d at 1330(citation omitted). On the other hand, infrequent assertions of minimal oversight
do not constitute the requisite degree of supervision. Id. The record in this case
reveals that Champion engaged in very little, if any, supervision. On deposition,
plaintiffs themselves described Champion’s supervision as very rare and
infrequent, and admitted that they relied exclusively upon the F & K foremen for
supervision and direction. While it is uncontested that Champion personnel were
18
present on the job sites, they did not supervise the laborers; they were there simply
to ensure that F & K complied with the contract specifications. Such oversight is
specifically permitted by the regulations:
The agricultural employer/association may certainly take
action during or after the conclusion of the work to
confirm satisfaction of the contract’s ultimate
performance standards (including appearing in the field
and communicating with the FLC about general
observations concerning performance of the contract
standards, such as ripeness or size of the produce
harvested) without this action alone being considered an
indicium of joint employment. . . . [A] reasonable degree
of contract performance oversight . . . is permissible.
Migrant and Seasonal Agricultural Worker Protection Act, 62 Fed. Reg. at 11,740.
In sum, Champion’s supervision was at most de minimis, and did not rise to
the level of supervision necessary to satisfy this factor. We also conclude that the
record contains no evidence that Champion controlled plaintiffs’ employment. The
first factor, therefore, weighs against a finding of joint employment.
2. Whether Champion had the direct or indirect power to (1) hire or fire, (2)
modify the employment conditions, or (3) determine the pay rates or the methods of
wage payment for the laborers.
19
The second indicator of joint employment required the district court to
consider whether Champion had the power to hire or fire the laborers, modify their
employment conditions, or determine the rate of pay they should receive and how
they should be paid. Plaintiffs do not contend that Champion had the power to hire
or fire them, or set their pay. Instead, plaintiffs half-heartedly assert that Champion
possessed the power to modify their employment conditions because it could
determine when planting started, where it took place, and how long it lasted. They
base their assertion solely on Champion’s contractual right to stop planting due to
adverse weather or poor soil conditions.
Putting aside the fact that determining whether planting should continue in
adverse weather or poor soil conditions is quintessentially an agricultural decision,
the right to halt planting under those conditions could hardly amount to
circumstantial evidence – whether considered in isolation or in combination with
the other evidence in the case – that Champion was plaintiffs’ employer. The
evidence is unmistakable: Champion had no control over the laborers working
conditions. F & K’s foremen determined when they began working in the morning,
when they took lunch or rest breaks, and when they quit for the day. Likewise, F &
K could shift a laborer from one task to another, punish him if necessary, or alter
his pay. See Aimable, 20 F.3d at 442. Contrast Antenor, 88 F.3d at 935 (finding
20
economic dependence when grower dictated the workers’ hours by deciding when
work began each day, by halting picking when prices were low, and by hiring other
workers). This factor, like the first factor, weighs against a finding of joint
employment.
3. The degree of permanency and duration of the relationship of the parties.
The third regulatory factor indicates the degree of permanency and duration
of the relationship between the laborer and the alleged employer. Where an FLC
and its workers are engaged for the duration of the operation and are obligated to
work exclusively for the employer at its discretion, this factor would suggest
economic dependence. See Migrant and Seasonal Agricultural Worker Protection
Act, 62 Fed. Reg. at 11,740. Plaintiffs concede, however, that they did not have a
“particularly permanent relationship” with Champion and that this factor “suggests
a lack of economic dependence.” Indeed, plaintiffs only worked scattered weeks,
at most, on Champion property, never spoke with Champion personnel, and
generally never even knew that Champion was the recipient of their efforts. We
find that this factor weighs against a determination that plaintiffs were jointly
employed by Champion.
21
4. The extent to which the services rendered by the laborers are repetitive, rote
tasks requiring skills which are acquired with little training.
The fourth regulatory factor focuses on the extent to which the services
rendered by the laborers are repetitive, rote tasks that required little training to
learn. The lower the worker’s skill level, the lower the value and marketability of
his services, and the greater the likelihood of his economic dependence on the
person utilizing those services.33 See Migrant and Seasonal Agricultural Worker
Protection Act, 62 Fed. Reg. at 11,740-41. While on the surface planting seedlings
appears to be a rote task easily learned, the evidence in the record paints a less clear
picture. For example, tree planters must learn to (1) cull defective seedlings, (2)
determine the proper depth to plant the seedlings, (3) place the seedlings in the
ground at the correct angle, (4) plant the seedlings with straight roots, (5) pack the
seedlings tightly, and (6) measure appropriate spacing between the trees. Several
plaintiffs, including the ones with several years of planting experience,
acknowledged that it is difficult to master these skills. Even so, most laborers were
33
In Aimable, 20 F.3d at 444, we concluded that this factor is irrelevant to a
determination of joint employment. The Department of Labor disagreed with our conclusion,
and we defer to its judgment. Even so, we have difficulty discerning the probative value of this
factor in resolving, one way or the other, the issue of joint employment. See id.22
able to effectively, albeit imperfectly, learn their job with relatively little training.
Overall, we think this factor cuts slightly in favor of economic dependence.
Although the planting of seedlings certainly requires more skill and is less rote than
picking snap beans, see Charles, 169 F.3d at 1332, the amount of training required
to perform the task is minimal, and most anyone could pick up the requisite skill.
5. Whether the activities performed by the laborers are an integral part of
Champion’s overall business.
The next regulatory factor assesses whether the activities performed by the
laborers were an integral part of Champion’s overall business operation. “This
factor is probative of joint employment because a worker who performs a routine
task that is a normal and integral phase of the grower’s production is likely to be
dependent on the grower’s overall production process.” Antenor, 88 F.3d at 937.
A task or activity is considered “integral” to an employer’s business when that
employer “would be virtually certain to assure that the function is performed, and
would obtain the services of whatever workers are needed for this function .
[Accordingly, t]he workers so engaged can reasonably anticipate that the work will
23
be available for so long as the function in question must be performed.” Migrant
and Seasonal Agricultural Worker Protection Act, 62 Fed. Reg. at 11,741. In other
words, to demonstrate economic dependency on Champion, plaintiffs had to show
that their role as hand-planters of tree seedlings was “indispensable” to Champion’s
business. See Antenor, 88 F.3d at 937.
The district court determined that the laborers had failed to make this
showing, and we agree. The record simply does not support the contention that
Champion depended upon hand-planting of tree seedlings to run its business.
Champion’s forestry operations constituted a small portion of its overall business.
Moreover, the timber provided by Champion’s forestry operations comprised only
a fraction of the timber Champion needed to supply its paper mills. Champion
purchased the majority of its timber on the open market. It is clear, therefore, that
Champion’s overall business did not rely on its forestry operations.
Even if we were to assume, however, that Champion’s forestry operations
were integral to its overall business, the evidence demonstrates that hand-planting
of seedlings was not indispensable to its forestry operations. Forests will
regenerate naturally over time, and a large portion of Champion’s land holdings
from 1996-99 were regenerated without the planting of seedlings. Furthermore, in
those areas that Champion did decide to plant seedlings, hand-planting was
24
unnecessary. Instead, most seedlings could have been – and in fact many were –
planted by machine. In short, Champion did not need to plant tree seedlings by
hand in order to maintain its forests or operate its overall business. The fifth factor
weighs against a finding of joint employment.
6. Whether the work was performed on Champion’s premises.
The sixth factor examines whether the laborers worked on Champion’s or
someone else’s land. “This factor is probative of joint employment because
without the land, the worker might not have work, and because a business that
owns or controls the worksite will likely be able to prevent labor law violations,
even if it delegates hiring and supervisory responsibilities to labor contractors.”
Charles, 169 F.3d at 1333 (internal quotation marks and citation omitted). There is
no dispute here that plaintiffs worked on Champion’s forest lands. This factor
would accordingly appear at first blush to weigh unequivocally in plaintiffs’ favor.
A closer look indicates that the weight of plaintiffs having worked on
Champion’s lands might be that of a feather. Plaintiffs worked the vast majority of
their time on land not owned by Champion. More significantly, they never took a
job with F & K premised upon the knowledge that they would be planting on
25
Champion land. Nor did it matter to them. They transferred from forest to forest,
generally unaware of and unconcerned about who possessed the land. Plaintiffs
who did “know” they were on Champion land knew so only cryptically – based on
the Champion logos they happened to observe. Champion could have been a
contractor hired to manage the landowner’s forests, rather than the landowner
itself, and plaintiffs would have been blissfully ignorant.
Given plaintiffs’ lack of knowledge and concern regarding whether
Champion was the owner of the land on which they were working, it cannot be said
they relied upon or anticipated Champion’s business for a source of their income.
See Migrant and Seasonal Agricultural Worker Protection Act, 62 Fed. Reg. at
11,741 (“The workers’ reliance upon a source or place of work (and, consequently,
a source of income in the form of wages for services) [should] appropriately be
considered in the determination of an employment relationship.”) In light of this,
the fact that plaintiffs performed their hand-planting services on Champion land
possesses little probity on the issue of whether they were economically dependent
on Champion. We therefore conclude that while the sixth factor may cut in favor
of joint employment, it does so only slightly.
7. Whether Champion undertook responsibilities in relation to the laborers that
26
employers commonly perform.
The final factor examines whether Champion undertook responsibilities for
workers often undertaken by employers, such as (1) preparing and/or making
payroll records, (2) preparing and/or issuing pay checks, (3) paying FICA taxes, (4)
providing workers’ compensation insurance, (5) providing field sanitation
facilities, housing or transportation, or (6) providing tools and equipment or
materials required for the job. The provision of such services “is both an objective
manifestation of employer status and strong evidence of the workers’ economic
dependence upon [it].” Migrant and Seasonal Agricultural Worker Protection Act,
62 Fed. Reg. at 11,741-2. It is undisputed that Champion provided none of these
services; F & K alone prepared the laborer’s payroll records and checks, paid their
FICA taxes, provided their housing, transportation, tools, etc. Accordingly, the
seventh factor weighs strongly against a finding that Champion was plaintiffs’ joint
employer.
B.
As should be apparent from our discussion, the foregoing factors yield pieces
of circumstantial evidence. Our task is to determine whether these pieces,
27
considered together, yield the inference that Champion was plaintiffs’ employer as
they alleged in their complaint. Two factors generated circumstantial evidence
which points toward a finding that Champion was plaintiffs’ employer jointly with
F & K. Five factors, however, generate circumstantial evidence which points in the
opposite direction, against a finding of such employment. This evidence more than
outweighs the evidence generated by the other two factors. In sum, the record
conclusively establishes that plaintiffs were solely employed by, and economically
dependent upon, F & K – a large, legitimate business with a broad client base,
numerous full-time employees, and substantial amount of equipment. We therefore
affirm the district court’s decision granting Champion summary judgment.
III.
Plaintiffs brought this case as a class action, as authorized by the FLSA and
the MSAWPA. See supra note 1. Rule 23(c)(1) of the Federal Rules of Civil
Procedure requires that the district court determine “as soon as practicable” after
the lawsuit is filed whether the class action is to be so maintained.34 The lawsuit
34
Rule 23(c)(1) provides:
As soon as practicable after the commencement of an action
brought as a class action, the court shall determine by order
whether it is to be so maintained. An order under this subdivision
may be conditional, and may be altered or amended before the
decision on the merits.
28
was filed on January 26, 2000; on May 4, 2000, the district court entered a
scheduling order which, among other things, postponed consideration of class
certification until after it decided whether Champion was plaintiffs’ employer. The
order gave the parties until May 11, 2001, to file pleadings that would require the
court to address that question. The court subsequently extended this deadline to
June 29, 2001. On that date, both plaintiffs and Champion filed motions for
summary judgment. On March 18, 2002, the court ruled, granting Champion’s
motion. A final judgment in favor of Champion was entered the same day. As we
observed at the outset, the court entered final judgment without addressing the
class certification issue.35
The district court erred in failing to address the issue. The court apparently
35
A district court’s failure to determine prior to the entry of final judgment whether the
case should proceed as a class action may deprive its judgment of the requisite finality for
appealability under 28 U.S.C. § 1291 (and thereby deprive us of our jurisdiction over the appeal).
Our research fails to disclose an Eleventh Circuit case, such as the one before us, in which the
district court failed to rule on class certification. The Seventh Circuit, however, has faced the
issue on several occasions. Its jurisprudence guides our analysis. Where a district court
deliberately reserves ruling on class certification pending an appeal of its order granting summary
judgment, there is no final judgment and the court of appeals lacks jurisdiction to hear the appeal.
Glidden v. Chromalloy Am. Corp., 808 F.2d 621, 623 (7th Cir. 1986). On the other hand, where
a district court retains nothing for later decision – i.e., treats the litigation as having ended – the
court’s judgment is final, and the appeal may go forward. See Hickey v. Duffy, 827 F.2d 234,
238 (7th Cir. 1987).
In this case, it is apparent that the district court believed the litigation was over. Its entry
of “final” judgment concomitant with its order granting summary judgment clearly indicated that
it contemplated no further proceedings in the case. We accordingly conclude that we have
jurisdiction over this appeal.
29
thought that its decision granting Champion summary judgment on the employer
issue automatically disposed of the class certification issue. That is, having lost
their cases on the merits, the named plaintiffs would be unable as a matter of law to
represent the class. The court was incorrect. The law of this circuit is to the
contrary: a plaintiff’s capacity to act as representative of the class is not ipso facto
terminated when he loses his case on the merits. See Satterwhite v. City of
Greenville, 634 F.2d 231 (5th Cir. Jan. 1981) (en banc);36 Armour v. City of
Anniston, 654 F.2d 382 (5th Cir. Unit B Aug. 1981) (per curiam); see also
Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1383 n.16 (11th Cir. 1998) (en
banc) (noting that in some cases the named plaintiff may appeal a denial of class
certification even if she ceases individually to have a controversy with the
defendant). Consequently, even after finding against plaintiffs on the merits, the
court should have determined whether the class action could be maintained, and
whether the plaintiffs could represent that class.37
36
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
37
Under Rule 23(c)(1) “[t]he trial court has an independent obligation to decide whether
an action was properly brought as a class action, even where[, as here,] neither party moves for a
ruling on class certification.” McGowen v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th
Cir. Unit A Oct. 1981); accord Phillips v. Joint Legislative Comm. on Performance &
Expenditure Review of Miss., 637 F.2d 1014, 1022 n.9 (5th Cir. Feb. 1981). The complaint in
this case was brought as a class action. The district court accordingly was obligated to address
class certification, regardless of whether the parties moved for resolution of the issue.
30
As an appellate court, we are unable to review class certification decisions
before they are made. Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997). We
must therefore remand the case to the district court for further proceedings. As we
instructed the district court in Satterwhite, the court’s first task will be to determine
whether a case or controversy exists, as required by Article III, Section 3, of the
United States Constitution. If a live controversy exists, the court must then
determine whether the case is appropriate for class certification.38 If it is, the court
must go on to decide whether any of the named plaintiffs are qualified to serve as
class representative and, if not qualified, whether a member of the class is willing
and qualified to serve as class representative.
IV.
For the foregoing reasons, we AFFIRM the district court’s decision granting
Champion summary judgment. We VACATE the court’s final judgment, however,
and REMAND the case for further proceedings not inconsistent with what we have
said in part III.
SO ORDERED.
38
We are aware of Local Rule 23.1(b) for the Northern District of Florida, which
imposes on class action plaintiffs a duty to move for class certification within ninety days of
filing their complaint. Our opinion should not be read to limit the district court’s application of
the local rules or the court’s ability to sanction plaintiffs for noncompliance with the rules.
31