22. It is the custom and practice in the New Jersey blueberry industry to employ migrant and seasonal blueberry pickers through crew leaders.
23. State and federal officials hold annual informational meetings for crew leaders and farmers in New Jersey to explain their duties and obligations under the laws. Defendant Errera attended such a meeting in 1984, where the particular focus was on the crew leader's legal obligations.
CONCLUSIONS OF LAW
The FLSA defines "employer" as "any person acting directly or indirectly in the interest of an employer in relation to an employee. . . ." 29 U.S.C. § 203(d). Courts have interpreted this statutory definition broadly in order to effectuate the FLSA's liberal, remedial purposes. Bonnette v. California Health and Welfare Agency, 704 F.2d 1465, 1469 (9th Cir. 1983); Real v. Driscoll Strawberry Assoc., 603 F.2d 748, 754 (9th Cir. 1979). The common law's conception of the employer-employee relationship is not determinative. Usery v. Pilgrim Equipment Co., 527 F.2d 1308, 1311 n.6 (5th Cir.), cert. denied, 429 U.S. 826, 50 L. Ed. 2d 89, 97 S. Ct. 82 (1976).
To determine whether an employment relationship exists for purposes of the FLSA, the court must consider the underlying "economic reality." Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33, 6 L. Ed. 2d 100, 81 S. Ct. 933 (1961). While courts have identified several relevant factors, the final determination depends not on "isolated factors but rather upon the circumstances of the whole activity." Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 91 L. Ed. 1772, 67 S. Ct. 1473 (1947).
The statutory definition of "employer" can encompass two or more individuals with respect to the same employee. Hodgson v. Griffin and Brand of McAllen, Inc., 471 F.2d 235 (5th Cir.), reh'g denied, 472 F.2d 1405, cert. denied, 414 U.S. 819, 94 S. Ct. 43, 38 L. Ed. 2d 51 (1973). In regulations enacted to implement the FLSA, the Department of Labor specifically endorses this doctrine of joint employment. Under 29 C.F.R. § 791.2, a determination of joint employment "depends upon all the facts in the particular case" and the rule of thumb is whether an employee's work for one employer is "completely disassociated from his or her work for another." 29 C.F.R. § 791.2(b). A joint employment relationship is generally deemed to exist (1) where one employer is acting directly or indirectly in the other's interest in relation to the employee and (2) where the employers are "not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer." 29 C.F.R. § 791.2(b)(2), (3).
Regulations enacted under and interpretive rulings relating to the FLSA are not binding on the court but are entitled to great weight. See Donovan v. I-20 Motels, Inc., 664 F.2d 957 (5th Cir. 1981); Atkins v. General Motors Corp., 701 F.2d 1124 (5th Cir. 1983).
In the agricultural context, farm owners and crew leaders have been held to be joint employers of migrant workers within the meaning of the FLSA. Griffin and Brand, supra. In Griffin and Brand, the Court of Appeals for the Fifth Circuit identified several factors which the court can consider in looking at the "economic reality" of a particular employment arrangement. Those factors have been specifically endorsed by Congress in determining joint employment of farmworkers for FLSA and MSPA purposes. See H.R. Rep. No. 97-885, 97th Cong., 2d Sess., page 7 (1982) reprinted in 1982 U.S. Code Cong. & Ad. News 4547, 4553 ("House Report").
The Griffin and Brand factors include: (1) whether the employment took place on the alleged employer's premises; (2) how much control the alleged employer exerted over the workers; (3) whether the alleged employer had the power to hire and fire workers or to modify their employment conditions; (4) whether the workers performed a "specialty job" within the line of production; and (5) whether the worker could refuse to work for the alleged employer or choose to work for others. 471 F.2d at 237-38. The fifth factor has never been applied in the agricultural context; but considering the other factors in conjunction with the federal regulations and in light of the facts of the instant case leads to a single, inescapable conclusion: defendants Lucca and Errera were, with Pedro Bermudez, plaintiff's "joint employers."
Plaintiffs picked blueberries on land which Bar O Farms leased and operated. Lucca and Errera designed, implemented and ultimately controlled the picking process and the payment system. Lucca spent considerable time in the fields monitoring workers and crew leaders and at least twice instructed a crew leader to dismiss a worker immediately because Lucca was displeased with the worker's performance. Lucca selected the area of the fields where each crew worked on any given day and had the sole authority to transfer a crew to a new field. When Lucca fired Bermudez, he informed members of Bermudez' crew that they could continue to pick blueberries from Bar O Farms if they switched to another crew leader's supervision. These facts indicate that despite the presence of crew leaders who acted as intermediaries between the farmers and the workers for purposes of recruitment, translation, and day-to-day supervision, the blueberry pickers were also employed by Lucca and Errera. In addition, picking blueberries qualifies as a "specialty job" within the process of taking berries from field to market because it is an annual, integral element of agricultural production. The "economic reality" is unmistakable: plaintiffs were employees and defendants were their employers.
Both the federal government and the state of New Jersey have enacted comprehensive statutory schemes to regulate the use of migrant and seasonal workers in the agricultural industry, largely to protect such workers from exploitation. The federal Migrant and Seasonal Agricultural Worker Protection Act ("MSPA"), 29 U.S.C. § 1801 et seq., enacted in 1983, repealed and replaced the Farm Labor Contractor Registration Act of 1963 ("FLCRA").
Congress enacted the FLCRA in 1963 "to protect agricultural workers whose employment had been historically characterized by low wages, long hours and poor working conditions." House Report at 4547. Under the FLCRA's scheme, "virtually all duties, responsibilities and protections" ran through the "farm labor contractor," an intermediary hired by farm operators to recruit and supply migrant and seasonal workers. Id. at 4548. The FLCRA, however, failed to eliminate the targeted abuses and Congress decided to replace it with the MSPA, "a completely new approach." Id. at 4549.
The MSPA uses the term "employ" in the identical sense as does the Fair Labor Standards Act, 29 U.S.C. § 203(g). In commenting on this definitional choice, the Education and Labor Committee said:
The Committee's use of this term was deliberate and done with the clear intent of adopting the "joint employer" doctrine as a central foundation of this new statute; it is the indivisible hinge between certain important duties imposed for the protection of migrant and seasonal workers and those liable for any breach of those duties. The determination of whether a farm labor contractor, agricultural employer or agricultural association has certain duties under this Act will turn on whether such person is an employer of migrant or seasonal agricultural workers.
Id. at 4552. The Committee then explained the joint employer doctrine and made explicit reference to the Griffin and Brand factors discussed supra. The report continued:
The Committee in recognizing that the agricultural economy contains many and varied employment relationships involving a mixture of employers, contractors and employees, wishes to make clear that under the construction of the joint employer concept as set forth in the foregoing, it envisions situations where a single employee may have the necessary employment relationship with not only one employer but simultaneously such a relationship with an employer and an independent contractor or with several employers with or without the inclusion of an independent contractor. The focus of each inquiry, therefore, must be on each employment relationship as it exists between the worker and the party asserted to be a joint employer. In the tests and criteria as set forth in this section it is expected that the special aspects of agricultural employment be kept in mind.