UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

Transcription

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION OSCAR LUNA DUARTE, FERNANDO GOMEZ HERNANDEZ, LUIS ALVARADO MONROY, vs. Plaintiffs, DANIEL P. MEJIA and MEJIA PRODUCE, LLC, a North Carolina limited liability company, MEJIA PRODUCE, LLC, a Georgia limited liability company, and MEJIA PRODUCE, LLC, a Florida limited liability company; Defendants. Civil Action No. 116 CV 108 COMPLAINT I. PRELIMINARY STATEMENT 1. Plaintiffs are guest workers from Guatemala and Mexico recruited by Defendants, to work in and around Grady County, Georgia in 2014 and Plaintiffs file this action to secure and vindicate their rights under the Fair Labor Standards Act ( FLSA ), 29 U.S.C. 201 et seq., 29 U.S.C. 49 et seq., the Trafficking Victims Protection Act ( TVPA ), 1 Case 116-cv Document 1 Filed 04/24/16 Page 1 of 26

2 18 U.S.C. 1595, the North Carolina Wage and Hour Act ( NCWHA ), N.C. Gen. Stat , et seq. and under Georgia contract law. 2. Defendants violated the FLSA by failing to pay Plaintiffs at least the required average minimum hourly wage for every compensable hour of labor performed in a workweek, including by failing to reimburse their pre employment expenses incurred primarily for the benefit and convenience of Defendants as required by law. 3. Defendants intentionally violated the rights of Plaintiffs under the NCWHA by failing to pay the promised wage in violation of N.C. Gen. Stat Defendants violated the TVPA by using threats of serious harm, threatened abuse of the legal process, and other means to obtain and provide to others the forced labor and involuntary servitude of Plaintiffs. 5. Defendants breached Plaintiffs employment contracts by failing to pay the contractually promised wages for all hours worked, and by failing to reimburse pre employment expenses incurred primarily for the benefit and convenience of Defendants. 6. Plaintiffs seek their unpaid wages, liquidated damages, actual, incidental, consequential, compensatory, and statutory damages, pre and post judgment interest, declaratory relief, costs, and reasonable attorneys fees. II. JURISDICTION AND VENUE 7. This Court has jurisdiction of this action pursuant to 28 U.S.C (Federal Question); 2 Case 116-cv Document 1 Filed 04/24/16 Page 2 of 26

3 29 U.S.C (Interstate Commerce); 29 U.S.C. 216(b) (FLSA); 18 U.S.C. 1595(a) (TVPA); and 28 U.S.C (Supplemental). 8. This Court has supplemental jurisdiction over the state law claims because they are so related to Plaintiffs federal FLSA claims that they form part of the same case or controversy under Article III, Section 2 of the U.S. Constitution. 9. Venue is proper in this district pursuant to 28 U.S.C. 1391(b). III. PARTIES Plaintiffs 10. Plaintiff Oscar Luna Duarte was an H 2A guest worker admitted into the United States to work for Defendants under the auspices of the H 2A program, 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c)(1) and 20 C.F.R et seq. Plaintiff Oscar Luna Duarte s FLSA consent to sue form is attached as Exhibit A. 11. Plaintiff Oscar Luna Duarte was an employee of Defendants, within the meaning of 29 U.S.C. 203(e)(1) and 203(g), and under N.C. Gen. Stat (4), in the 2014 season. 12. Plaintiff Fernando Gomez Hernandez was an H 2A guest worker admitted into the United States to work for Defendants under the auspices of the H 2A program, 8 U.S.C. 3 Case 116-cv Document 1 Filed 04/24/16 Page 3 of 26

4 1101(a)(15)(H)(ii)(a), 1184(c)(1), and 20 C.F.R et seq. Plaintiff Fernando Gomez Hernandez s FLSA consent to sue form is attached as Exhibit B. 13. Plaintiff Fernando Gomez Hernandez was an employee of Defendants, within the meaning of 29 U.S.C. 203(e)(1) and 203(g), and under N.C. Gen. Stat (4), in the 2015 season. 14. Plaintiff Luis Alvarado Monroy was an H 2A guest worker admitted into the United States to work for Defendants under the auspices of the H 2A program, 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c)(1), and 20 C.F.R et seq. Plaintiff Luis Alvarado Monroy s FLSA consent to sue form is attached as Exhibit C. 15. Plaintiff Luis Alvarado Monroy was an employee of Defendants, within the meaning of 29 U.S.C. 203(e)(1) and 203(g), and under N.C. Gen. Stat (4), in the 2015 season. Defendants 16. During the 2014 season, Defendant Daniel P. Mejia was a Farm Labor Contractor ( FLC ) registered with the U.S. Department of Labor, with registration number C A 15 R. Upon information and belief, Defendant Daniel P. Mejia s FLC registration expired January 31, At all times relevant to this complaint, Defendant Daniel P. Mejia was the day to day manager of Defendant Mejia Produce, LLC (the Georgia LLC), Defendant Mejia Produce, LLC (the North Carolina LLC), and Defendant Mejia Produce, LLC (the 4 Case 116-cv Document 1 Filed 04/24/16 Page 4 of 26

5 Florida LLC), and established the business practices of all three LLCs (the LLC Defendants). 18. Upon information and belief, Defendant Daniel P. Mejia operated the three LLC Defendants as a single enterprise. 19. Defendant Daniel P. Mejia represented Mejia Produce to be an alter ego of himself by, inter alia, opening financial account(s) and conducting financial transaction(s) under the auspices of Daniel P. Mejia d/b/a Mejia Produce. 20. Upon information and belief, Defendant Daniel P. Mejia was the sole Managing Member of all three of the LLC Defendants. 21. As the Managing Member of the three LLC Defendants, Daniel P. Mejia was responsible for all activities of the LLC Defendants, including various aspects of the workers employment and employment conditions, such as paying workers wages. 22. Defendant Daniel P. Mejia s actions and knowledge with respect to paying workers wages and reimbursements owed, and other aspects of the workers employment and employment conditions are attributable both to himself, personally, and to the three LLC Defendants. 23. Defendant Daniel P. Mejia may be served at his North Carolina residence, 255 Duncan Road, Flat Rock, NC Defendant Daniel P. Mejia, if outside the jurisdiction of the Western District of North Carolina or otherwise unavailable to accept service, may be served with process by 5 Case 116-cv Document 1 Filed 04/24/16 Page 5 of 26

6 service of process to the Secretary of the U.S. DOL, upon court designation of the Secretary as an agent to accept service. 29 U.S.C. 1812(5). 25. At all times relevant to this complaint, Defendant Mejia Produce, LLC (the Georgia LLC) was a Limited Liability Company organized under the laws of the State of Georgia. 26. Defendant Mejia Produce, LLC (the Georgia LLC) was registered with the Georgia Secretary of State on January 5, 2012, with control number Defendant Mejia Produce, LLC (the Georgia LLC) may be served through its Manager/Member and President Daniel P. Mejia, or at its principal office 16 Forest Parkway Stalls Shed 09, Forest Park, GA At all times relevant to this complaint, Defendant Mejia Produce, LLC (the Florida LLC) was a Limited Liability Company organized under the laws of the State of Florida. Defendant Mejia Produce, LLC (the Florida LLC) was registered with the Florida Secretary of State on January 9, 2013, with document number L Defendant Mejia Produce, LLC (the Florida LLC) may be served through its Manager/Member Daniel P. Mejia or at its principal office, 255 Duncan Road, Flat Rock, NC Defendant Mejia Produce, LLC (the North Carolina LLC) was organized as a Limited Liability Company under the laws of the State of North Carolina on August 25, 2014, and registered with the North Carolina Secretary of State with identification number Case 116-cv Document 1 Filed 04/24/16 Page 6 of 26

7 31. Defendant Mejia Produce, LLC (the North Carolina LLC) may be served through its Managing Member Daniel P. Mejia or at its principal office, 255 Duncan Road, Flat Rock, NC IV. THE H 2A PROGRAM 32. The H 2A program was created by 8 U.S.C and is implemented pursuant to the regulations found at 20 C.F.R et seq. (2010). An agricultural employer in the United States may import H 2A workers if the U.S. DOL certifies that (1) there are not enough U.S. workers to perform the job and (2) the employment of H 2A workers will not adversely affect the wages and working conditions of U.S. workers who are similarly employed. 8 U.S.C. 1101(a)(15)(H)(ii)(a); 8 U.S.C. 1188(a)(1). 33. Employers must file a temporary labor certification application with the U.S. DOL s Employment and Training Administration. 20 C.F.R (2010). The application has to include a job offer, known as a job order, that complies with the requirements of 20 C.F.R (2010). The job order contains the terms to be offered to both foreign H 2A guest workers and domestic workers throughout the United States. See 20 C.F.R (a)(2). 34. Prior to submitting a temporary labor certification, the job offer must first be submitted to the State Workforce Agency serving the area of intended employment for intrastate recruitment to begin local recruitment of U.S. workers. 20 C.F.R (1). 7 Case 116-cv Document 1 Filed 04/24/16 Page 7 of 26

8 35. In 2014, Defendants filed job order GA with the Georgia Department of Labor (attached as Exhibit D), and an application for a temporary labor certification with the U.S. Department of Labor. 36. Job order GA submitted by Defendants advertised for 61 temporary positions, with work to begin in January 16, 2014 and continue until September 9, At some point in 2014, Defendants filed for, and obtained, an extension of the H 2A visas obtained under job order GA , thereby extending the 2014 employment contract. 38. The extension of job order GA was primarily for the benefit of Defendants, but Defendant Daniel P. Mejia charged the workers $150 each therefor, deducting it from their pay. 39. Job order GA indicated that workers would work in tomatoes, peppers, beans, squash, eggplant, cucumber, onion, and mustard and collard greens. An address in Cairo, GA was listed as the work site. 40. Job Order GA listed the rate of pay for this work as $9.78 per hour, which was the applicable adverse effect wage rate ( AEWR ) for the prior year of 2013, see 78 Fed. Reg. 1,259 (Jan. 8, 2013). 41. Defendants were obligated to promise an hourly wage of $10.00 per hour, which was the applicable adverse effect wage rate ( AEWR ) for the year of 2014, see 79 Fed. Reg. 664, (Jan. 6, 2014). 8 Case 116-cv Document 1 Filed 04/24/16 Page 8 of 26

9 42. Prior to the beginning of work for the 2014 season, Defendants executed a written document promising to pay each Plaintiff who worked in 2014 at least $10.00 per hour for the 2014 season. 43. The terms and conditions of job order GA and the promise to pay $10.00, together with the requirements of 20 C.F.R. part 655, constituted an offer of employment, which when accepted, created an employment contract for the 2014 season between Defendants and each Plaintiff who accepted the offer. 20 C.F.R (b) (definition of work contract ). 44. In 2015, Defendants filed job order GA with the Georgia Department of Labor (attached hereto as Exhibit E), and an application for a temporary labor certification with the U.S. Department of Labor. 45. Job order GA submitted by Defendants advertised for 74 temporary positions, with work to begin in April 4, 2015 and continue until December 5, Job order GA indicated that workers would work in eggplant, squash, peppers, tomatoes, and corn. An address in Cairo, GA was listed as the work site. 47. Job Order GA listed the rate of pay for this work as $10.00 per hour, which was the applicable adverse effect wage rate ( AEWR ) for the year of 2015, see 79 Fed. Reg. 75,839 (Dec. 19, 2014). 48. Defendants were obligated to promise an hourly wage of $10.00 per hour, which was the applicable adverse effect wage rate ( AEWR ) for the year of 2015, see 79 Fed. Reg. 75,839 (Dec. 19, 2014). 9 Case 116-cv Document 1 Filed 04/24/16 Page 9 of 26

10 49. Prior to the beginning of work for the 2015 season, Defendants executed a written document promising to pay each Plaintiff who worked in 2015 at least $10.00 per hour for the 2015 season. 50. The terms and conditions of job order GA and the promise to pay $10.00, together with the requirements of 20 C.F.R. part 655, constituted an offer of employment, which when accepted, created an employment contract for the 2015 season between Defendants and each Plaintiff who accepted the offer. 20 C.F.R (b) (definition of work contract ). 51. The H 2A employment contracts at issue here incorporate a regulatory definition of employer found at 20 C.F.R (b) and the contract contained a promise to comply with applicable Federal and State minimum wage... and other employment related laws including the FLSA and the NCWHA. See 20 C.F.R (e). 52. In promising to pay the federally mandated AEWR, Defendants also promised to pay that wage free and clear without deduction of items for the employer s benefit or without reducing an employee s wages by shifting costs to their employees. 53. In the employment contracts Defendants also promised that workers would be paid their subsistence expense for travel from the place where the worker came and return travel back to that place each year as required by 20 C.F.R (h). 10 Case 116-cv Document 1 Filed 04/24/16 Page 10 of 26

11 54. The minimum daily subsistence amount as published in the Federal Register and as incorporated into Plaintiffs contracts was $11.58 in 2014, see 79 Fed. Reg. 12,528 (March 5, 2014), and $11.68 in 2015, see 80 Fed. Reg. 9,482 (Feb. 23, 2015). V. STATEMENT OF FACTS Recruitment 55. Defendants recruited impoverished Guatemalan and Mexican nationals to work as agricultural laborers in the United States. 56. Defendants recruited Plaintiff Oscar Luna Duarte in Guatemala in 2014 with an offer of employment under the terms of an H 2A job order. 57. Defendants recruited Plaintiffs Fernando Gomez Hernandez and Luis Alvarado Monroy in Mexico in 2015 with an offer of employment under the terms of an H 2A job order. 58. In order to obtain the job opportunity, Plaintiffs were required to and did pay a fee to Defendants in excess of $ When Plaintiffs were recruited, Defendants agents, acting within the scope of their authority, promised them free housing and a pay rate of $10.00 per hour. 60. Plaintiffs accepted the offers of employment. 61. Plaintiffs incurred various immigration, processing, and travel related expenses in order to come to work for Defendants. 11 Case 116-cv Document 1 Filed 04/24/16 Page 11 of 26

12 62. Plaintiffs paid, at their own expense, visa and processing fees in excess of $180 in order to obtain the H 2A visa. 63. In order to comply with the Defendants hiring processes, Plaintiff Luna Duarte traveled, at his own expense, from his home to the U.S. Embassy in Guatemala City, Guatemala for the interview necessary to obtain an H 2A visa. 64. Plaintiff Luna Duarte s travel expenses from his home to Guatemala City exceeded $ In order to comply with the Defendants hiring processes, Plaintiff Alvarado Monroy traveled, at his own expense, from his home to the U.S. Consulate in Monterrey, Mexico for the interview necessary to obtain an H 2A visa. 66. Plaintiffs Gomez Hernandez, and Alvarado Monroy s travel expenses from their homes to Monterrey exceeded $ Plaintiffs incurred expenses for lodging while they completed visa application forms, attended consular interviews, and waited for the visa applications to be processed and for the visas to be issued. 68. Plaintiffs, lacking money to pay for successive rounds of fees, a fact known or which should have been known to Defendants, took out substantial loans to pay the increasing fees. 69. While in Guatemala, Defendants agent told Plaintiff Luna Duarte, who lacked enough money to pay the full inscription fee, that he would owe a debt to be paid once he began working. 12 Case 116-cv Document 1 Filed 04/24/16 Page 12 of 26

13 70. Following the issuance of his H 2A visa, Plaintiff Luna Duarte were required to pay approximately $900 for a flight to the United States, or go into further debt to Defendants therefor. 71. Following the issuance of their H 2A visas, Plaintiffs Gomez Hernandez and Alvarado Monroy were required to pay approximately $150 each for a bus ticket to Defendants Georgia operations. 72. Plaintiff Luna Duarte and a group of other workers entered the United States on or around April 24, Plaintiffs Gomez Hernandez and Alvarado Monroy and a group of other workers entered the United States on or around June 19, The expenditures set out in paragraphs 58 through 71 were primarily for the benefit of the Defendants within the meaning of 29 C.F.R (c) and The expenditures set out in paragraphs 58 through 71 were made before receipt of Plaintiffs first paychecks except for recruitment fees paid by Plaintiff Luna Duarte, which were taken out of their first paycheck and subsequent paychecks. 76. Defendants failed to reimburse Plaintiffs during the first workweek for the costs described in paragraphs 58 through 71, resulting in Plaintiffs first week wages falling well below the minimum wage. 13 Case 116-cv Document 1 Filed 04/24/16 Page 13 of 26

14 2014 Housing 77. After arriving in Georgia in 2014, Plaintiff Luna Duarte was housed in a mobile home park in a rural area outside Calvary, Georgia, an unincorporated community with a population of less than 100 people. 78. The mobile home park outside Calvary was erected in 2000, although the trailers assembled to form the mobile home park are far older. 79. The trailers were controlled by Defendant Mejia, who resided less than one mile away, at 574 Thomas Road, Cairo, GA The trailers had no beds. Plaintiff and other workers had to build their own beds with wood purchased by workers. 81. The trailer windows had no screens, and the trailers were infested with insects. Also, the water had a foul odor and bad taste. 82. During the 2014 season, Defendant Mejia s agent took Plaintiff Luna Duarte and others to work in Homerville, Georgia, charging them $50 per week to live in a motel. 83. The motel in or around Homerville did not have a sufficient number of beds for all the workers. 84. Later in the season, Defendant Mejia took Plaintiff and other workers to live in Flat Rock, North Carolina, where he housed them in trailers controlled by Defendant Mejia. 85. The trailers in North Carolina were not inspected or certified as migrant housing by the North Carolina Department of Labor in Case 116-cv Document 1 Filed 04/24/16 Page 14 of 26

15 86. The trailers in North Carolina lacked, among other things, beds, fire safety equipment, and laundry facilities, in violation of the North Carolina Migrant Housing Act, N.C. Gen. Stat et seq. 87. Defendants did not post in a conspicuous place nor present to the Plaintiffs the terms and conditions of occupancy of the camp, as required by 29 U.S.C. 1821(c) and 29 C.F.R (f) Housing 88. After arriving in Georgia in 2015, Plaintiffs Gomez Hernandez and Alvarado Monroy were housed in a mobile home park in a rural area outside Calvary, Georgia, an unincorporated community with a population of less than 100 people. 89. The mobile home park outside Calvary was erected in 2000, although the trailers assembled to form the mobile home park are far older. 90. The trailers were controlled by Defendant Mejia, who resided less than one mile away, at 574 Thomas Road, Cairo, GA The water inside the trailers was unsuitable for drinking or cooking, and had a foul odor and bad taste. 92. Defendant Mejia, knowing the water in the trailers was not potable, told workers, including Plaintiffs Gomez Hernandez and Alvarado Monroy, to draw water for drinking and cooking from a spout outside his house. 15 Case 116-cv Document 1 Filed 04/24/16 Page 15 of 26

16 93. Workers, including Plaintiffs Gomez Hernandez and Alvarado Monroy, regularly filled containers with water and hauled them back to their housing using a vehicle borrowed from Defendant Mejia. 94. Later in the season, Defendant Mejia took Plaintiff and other workers to live in Flat Rock, North Carolina, where he housed them in trailers controlled by Defendant Mejia (North Carolina housing). 95. The North Carolina housing was not inspected or certified as migrant housing by the North Carolina Department of Labor in The North Carolina housing lacked, among other things, beds, fire safety equipment, and laundry facilities, in violation of the North Carolina Migrant Housing Act, N.C. Gen. Stat et seq. 97. Defendants did not post in a conspicuous place nor present to the Plaintiffs the terms and conditions of occupancy of the camp, as required by 29 U.S.C. 1821(c) and 29 C.F.R (f). Work 98. Plaintiffs worked for Defendants in Georgia harvesting tomatoes and other agricultural crops, including crops not listed on the H 2A job order, such as blueberries. 99. While working in Georgia, Plaintiffs regularly lacked access to portable toilets and drinking water in the fields. 16 Case 116-cv Document 1 Filed 04/24/16 Page 16 of 26

17 100. Defendant Mejia, who set workdays and work hours, often forced Plaintiffs to work on Sundays despite the contract s promises of no work on Sundays. This meant that Plaintiffs often had to forego life sustaining activities such as purchasing food and sending money to relatives Plaintiffs were totally dependent on Defendant Mejia and his agents for transportation, such that Plaintiffs had no means of travelling to purchase food or run other errands without transportation from their employer Defendants also transported Plaintiffs, and other workers, to North Carolina, where they worked harvesting apples While in North Carolina, Plaintiffs lived in housing near Flat Rock, North Carolina. Defendants did not provide Plaintiffs with mattresses to sleep on. Plaintiffs also travelled, at Defendants direction, from the Flat Rock housing to South Carolina, where they worked in various crops, including tomatoes, chiles, jalapenos, and apples In 2014, Defendants had Plaintiff Luna Duarte and other workers return to live and work in Georgia in October Plaintiffs did not receive payment for all compensable hours worked, as required by the FLSA and their employment contracts Plaintiffs were paid on a piece rate basis for much of their work, such as harvesting produce, such that they were paid according to the amount of crops harvested, without regard to the number of hours worked. 17 Case 116-cv Document 1 Filed 04/24/16 Page 17 of 26

18 107. Plaintiffs were paid on an hourly basis for some work, such as staking tomatoes, at a rate below the promised wage rate In some or all weeks, Plaintiffs weekly earnings fell below the applicable federal minimum wage In some or all weeks, Plaintiffs weekly earnings fell below the contractually promised wage of $10.00 for each hour worked Defendants did not supplement Plaintiffs weekly earnings to ensure that they received the wages required by the FLSA or the minimum hourly wage set forth in the employment contracts Plaintiffs wages were so low that at times they did not have enough money to buy food and make payments on their loans When workers including Plaintiffs complained about working conditions, Defendant Mejia threatened them, saying in Spanish, that whoever messed with him was a dead man walking Defendants confiscated the passports of Plaintiffs Plaintiffs were told that if they quit their jobs, they would be reported to immigration and be deported Defendants failed to make, keep, preserve, and retain accurate employment records as required by the FLSA, 29 U.S.C. 211(c) Defendants actions described in paragraphs 33, 42, 43, 47, and 48 indicate that the underpayment of wages to Plaintiffs was willful. 18 Case 116-cv Document 1 Filed 04/24/16 Page 18 of 26

19 COUNT I FLSA MINIMUM WAGE Plaintiffs incorporate each of the allegations contained in paragraphs 1 through 116 above by reference This Count sets forth a claim by Plaintiffs for damages for Defendants violations of the FLSA pursuant to 29 U.S.C. 216(b) As detailed in paragraphs 58 through 76 and 105 through 116 above, Defendants failed to pay Plaintiffs at least the required average minimum hourly wage for every compensable hour of labor performed in the workweeks spent working, as required by 29 U.S.C. 206(a) The violations of the FLSA resulted, in part, from Defendants failure to reimburse Plaintiffs for expenses as detailed in paragraphs 58 through 76 above, which Plaintiffs incurred primarily for the benefit or convenience of Defendants prior to Plaintiffs first week of work. When these expenses were subtracted from Plaintiffs first week s pay, as required by law, Plaintiffs earnings fell well below the required average minimum hourly wage for that pay period, and were negative The violations set forth in this Count resulted, in part, from Defendants practice of paying Plaintiffs, and the other workers, based on the quantity of the produce cultivated or harvested without regard to the number of hours Plaintiffs worked, as detailed in paragraph 106 above. 19 Case 116-cv Document 1 Filed 04/24/16 Page 19 of 26

20 121. The violations set forth in this Count also resulted, in part, from Defendants failure to record and pay Plaintiffs for all hours worked as described in paragraphs 105 through 110 and 115 above Defendants violations of the FLSA s minimum hourly wage were willful, within the meaning of 29 U.S.C. 255(a), as demonstrated by the allegations in paragraphs 33, 42, 43, 47, and 48 above Pursuant to 29 U.S.C. 216(b), as a result of Defendants violations of the FLSA set forth in this Count, each Plaintiff is entitled to recover the amount of his unpaid wages and an equal amount as liquidated damages for each workweek in which he was suffered or permitted to work for Defendants during which he earned less than the applicable minimum wage. COUNT II NCWHA Plaintiffs incorporate each of the allegations contained in paragraphs 1 through 123 above by reference This claim arises against all Defendants under the North Carolina Wage and Hour Act, N.C. Gen. Stat Defendants intentionally violated Plaintiffs rights under the NCWHA by failing to pay the promised wage, in violation of N.C. Gen. Stat As a direct result of Defendants NCWHA violations, Plaintiffs suffered substantial injury. 20 Case 116-cv Document 1 Filed 04/24/16 Page 20 of 26

21 COUNT III TVPA Plaintiffs incorporate each of the allegations contained in paragraphs 1 through 126 above by reference This Count sets forth a claim by Plaintiffs against Defendants for violations of the forced labor provision of the Trafficking Victims Protection Act, 18 U.S.C Defendants recruited and transported Plaintiffs into the United States for the purposes of obtaining their labor through fraud, force, and coercion As set forth above in paragraphs 55 through 114, Defendants obtained Plaintiffs labor a. by means of the abuse or threatened abuse of law or the legal process, and b. by means of a scheme intended to cause Plaintiffs to believe that if they did not perform the labor as required, they would suffer serious harm Defendant Mejia confiscated the passports of Plaintiffs as stated in paragraph 113 to keep them from leaving his employ Defendant Mejia subjected Plaintiffs to deplorable housing conditions, as alleged in paragraphs 77 through Defendant Mejia threatened Plaintiffs with deportation and loss of liberty should they choose to stop working as detailed in paragraphs 112 and Defendant Mejia s actions detailed in this Count were taken knowingly within the meaning of 18 U.S.C Case 116-cv Document 1 Filed 04/24/16 Page 21 of 26

22 134. The LLC Defendants knowingly benefited financially from participation in a venture [with Defendant Mejia] which they knew or should have known was engaged in the acts set forth above in paragraphs 55 through 114. COUNT IV CONTRACT Plaintiff incorporates each of the allegations contained in paragraphs 1 through 134 above by reference This Count sets forth a claim by Plaintiffs for damages for Defendants breach of the rate of pay provisions and reimbursement provisions of the Plaintiffs employment contracts, as described in paragraphs 35 through 53, 56 through 76, and 98 through 110, above This Count sets forth Plaintiffs claims for declaratory relief and damages for Defendants breach of the attestations required by 20 C.F.R (e), with respect to the H 2A contract, and contained in Plaintiffs employment contract Defendants offered employment on the terms and conditions set out in 2014 and 2015 job orders, and temporary labor certification application, and as described in paragraphs 35 through 53 and 56 through 60 above Plaintiffs accepted Defendants offer Defendants breached Plaintiffs employment contracts by failing to pay Plaintiffs the promised minimum hourly wage of $10.00, as described in paragraph 109 above. 22 Case 116-cv Document 1 Filed 04/24/16 Page 22 of 26

23 140. Defendants also breached Plaintiffs employment contracts by failing to pay Plaintiffs at least the applicable federal minimum wage for each compensable hour of work in a workweek, as set forth above As a direct consequence of Defendants breach of the Plaintiffs employment contracts, Plaintiffs suffered economic injury Defendants are liable to Plaintiffs for the damages that arose naturally and according to the usual course of things from Defendants breach, as provided by federal common law and/or O.C.G.A , including unpaid wages, damages arising from the delay, and prejudgment interest. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief (a) Under Count I 1. Declare that Defendants have violated the FLSA as specified above in Count I; 2. Grant judgment against Defendants and in favor of each Plaintiff in the amount of his respective unpaid wages as proved at trial, plus an equal amount in liquidated damages, pursuant to 29 U.S.C. 216(b); and 3. Award Plaintiffs attorneys fees pursuant to 29 U.S.C. 216(b). (b) Under Count II 1. Declare that Defendants have violated the NCWHA as specified in Count II; 23 Case 116-cv Document 1 Filed 04/24/16 Page 23 of 26

24 2. Enter judgment against Defendants and in favor of each Plaintiff; 3. Grant injunctive relief; 4. Award Plaintiffs, pursuant to N.C. Gen. Stat , actual amounts due for the violations of the NCWHA plus interest from the date that the wages became due plus an equal amount in liquidated damages; and 5. Award a reasonable attorney s fee to be paid by Defendants. (c) Under Count III 1. Declare that Defendants have violated the TVPA as specified in Count III, above; 2. Grant judgment against Defendants and in favor of each Plaintiff in the amount of each Plaintiff s compensatory damages as proved at trial, including the promised contractual hourly wage for Plaintiff s work, and damages for the emotional harm that Defendants violations caused; 3. Pursuant to 18 U.S.C. 1595, order Defendants to pay Plaintiffs punitive damages for their intentional violations; and 4. Award Plaintiffs attorneys fees pursuant to 18 U.S.C. 1595(a). (d) Under Count IV 1. Declare that Defendants have breached their employment contract with Plaintiff as specified in Count IV, above; 24 Case 116-cv Document 1 Filed 04/24/16 Page 24 of 26

25 2. Grant judgment against Defendants and in favor each Plaintiff, in the amount of each Plaintiff s damages as arose naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of such breach; (e) (f) (g) Award Plaintiffs pre and post judgment interest as allowed by law; Cast all costs upon Defendants; and Award Plaintiffs such further relief, at law or in equity, as this Court deems just and proper. Respectfully submitted this 24th day of April, 2016, 25 /s/ Caroline S. DiMaio Caroline S. DiMaio Bar No Attorney for Plaintiff Luna Duarte Legal Aid of North Carolina 224 South Dawson Street Raleigh, North Carolina Telephone (919) Fax (919) E mail CarolineD@legalaidnc.org /s/ Lori J. Johnson Lori J. Johnson Bar No Attorney for Plaintiff Luna Duarte Legal Aid of North Carolina 224 South Dawson Street Raleigh, North Carolina Telephone (919) Fax (919) Case 116-cv Document 1 Filed 04/24/16 Page 25 of 26

26 E mail /s/ Dawson Morton Dawson Morton Georgia Bar No Attorney for Plaintiffs Gomez Hernandez and Alvarado Monroy Georgia Legal Services Program 104 Marietta Street NW, Ste. 250 Atlanta, Georgia Telephone (404) Fax (404) E mail Dawson@gafr.org Pro Hoc Vice Petition pending 26 Case 116-cv Document 1 Filed 04/24/16 Page 26 of 26