Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 1 of 31 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION PABLO ARRIAGA-ZACARIAS; TILO SARRACINO-HERNANDEZ; FRANCISCO JAVIER PEREZ-DELGADO; RAFAEL NAJERA- CASTILLO; JUAN HERNANDEZ-BANDA; JOSE ALFREDO CANO-AQUINO; JUAN JOSE ALBER-DE LA CRUZ; JULIO CESAR CANO- ESTRADA; NELSON RIVERA-MARTINEZ; LUIS ENRIQUE OCHOA-RAMIREZ; JUAN HERNANDEZ-HERNANDEZ; FELIX ROJAS- TORRES, and all others similarly situated, v. Plaintiffs, LEWIS TAYLOR FARMS, INC.; QUALITY PRODUCE, LLC; SPRING HILL PRODUCE, INC.; SPRING HILL PRODUCE, LLC; and WILLIAM L. BRIM, Defendants. COMPLAINT I. PRELIMINARY STATEMENT CIVIL ACTION NO. 1. This complaint sets forth claims by 12 migrant agricultural workers recruited by Courthouse News Service Defendants in Mexico to work for Lewis Taylor Farms and related entities under H-2A guestworker visas in and around Tift County, Georgia, during 2002, 2003, 2004, 2005, 2006, and 2007. Plaintiffs file this lawsuit on behalf of themselves and other similarly situated workers to enforce their rights under the Fair Labor Standards Act ( FLSA ), 29 U.S.C. 201, et seq., and 1
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 2 of 31 under contract law. 2. Acting through their agents, Defendants recruited the Plaintiffs in Mexico and contracted with them to work in and around Tift County, Georgia. 3. Plaintiffs left their homes and families and spent considerable money and effort to obtain their work visas and travel to Tift County, Georgia to work for Defendants. 4. Plaintiffs assert that Defendants willfully violated the FLSA by failing to pay Plaintiffs and others similarly situated the applicable minimum hourly wage for all hours worked. 5. Plaintiffs further assert that Defendants breached Plaintiffs employment contracts by failing to pay Plaintiffs the wages promised in their contracts and by failing to reimburse Plaintiffs for inbound and return transportation and subsistence expenses. 6. Plaintiffs seek their unpaid wages; liquidated damages; actual, incidental, consequential, and compensatory damages; pre-judgment interest, and declaratory relief. II. JURISDICTION AND VENUE 7. The Court has jurisdiction over this action pursuant to (a) (b) (c) (d) 28 U.S.C. 1331 (Federal Question); 29 U.S.C. 1337 (Interstate Commerce); 29 U.S.C. 216(b) (FLSA); and 28 U.S.C. 1367 (Supplemental Jurisdiction). 8. This Court has supplemental jurisdiction over the state law claims because they are so related to Plaintiffs federal claims that they form part of the same case or controversy under Article III, Section 2 of the United States Constitution. 9. Venue is proper in this District and Division pursuant to 28 U.S.C. 1391(b)(1) 2
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 3 of 31 and (c), and M.D.GA. Local Rule 3.4, because a substantial part of the events or omissions giving rise to Plaintiffs claims arose there and Defendants reside there. 10. This Court is empowered to grant declaratory relief pursuant to 28 U.S.C. 2201 and 2202. III. PARTIES PLAINTIFFS 11. At all times relevant to this complaint, Plaintiffs were H-2A agricultural guestworkers admitted into the United States to work for Defendants under the auspices of the H- 2A program, 8 U.S.C. 1188 and 20 C.F.R. 655.0 655.113. 12. Plaintiffs were employed by Defendants to plant, cultivate, and harvest vegetables in and around Tift County, Georgia for various time periods during 2002, 2003, 2004, 2005, 2006, and 2007. 13. Plaintiff Tilo Sarracino-Hernandez worked at Defendants operations in 2001, 2002, 2003, 2004, and 2006. 14. Plaintiff Francisco Javier Perez-Delgado worked at Defendants operations in 2001 and 2006. 15. Plaintiff Pablo Arriaga-Zacarias worked at Defendants operations in 1999, 2000, 2001, 2002, and 2006. 16. Plaintiff Luis Enrique Ochoa-Ramirez worked at Defendants operations in 1999, 2000, 2001 and 2006. 17. Plaintiff Juan Hernandez-Hernandez worked at Defendants operations in 2002, 2004, and 2006. 3
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 4 of 31 18. Plaintiff Felix Rojas-Torres worked at Defendants operations in 2001, 2004, 2005, and 2006. 19. Plaintiff Nelson Rivera-Martinez worked at Defendants operations in 2005 and 2006. 20. Plaintiffs Juan Hernandez-Banda, Juan Jose Alber-De la Cruz, and Jose Alfredo Cano-Aquino worked at Defendants operations in 2006. 21. Plaintiff Rafael Najera-Castillo worked at Defendants operations in 2001, 2004, 2006, and 2007. 22. Plaintiff Julio Cesar Cano-Estrada worked at Defendants operations in 2003, 2004, 2005, 2006, and 2007. 23. Plaintiffs FLSA consent forms are attached as part of composite Exhibit C. DEFENDANTS 24. At all times relevant to this action, Defendant Lewis Taylor Farms, Inc. ( Lewis Taylor Farms ) was and is a corporation in good standing duly formed under and in accordance with the laws of the State of Georgia. Lewis Taylor Farms may be served with process through its registered agent, William L. Brim, at 25 Sandhammock Lake Rd., Tifton, Georgia 31793. 25. Defendant William L. Brim ( Brim ) is the Chief Executive Officer of Defendant Lewis Taylor Farms and resides at 25 Sandhammock Lake Rd., Tifton, Georgia 31793. 26. Quality Produce, LLC ( Quality Produce ) is a corporation formed under and in accordance with the laws of the State of Georgia. Quality Produce may be served with process through its registered agent, William L. Brim, at 195 Ty Ty Omega Road, Tifton, Georgia 31793. 27. Defendant Brim is an organizer and manager of Defendant Quality Produce. 4
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 5 of 31 28. From 2002 to 2006, Spring Hill Produce, Inc. was a corporation in good standing duly formed under and in accordance with the laws of the State of Georgia. Spring Hill Produce, Inc. may be served with process through its registered agent, John Edwin Walker Jr., at 9 Country Club Place, Tifton, Georgia 31793. 29. Spring Hill Produce, Inc. was dissolved on or about December 29, 2006. 30. Defendant Brim was the corporate secretary of Spring Hill Produce, Inc. 31. In 2007, Spring Hill Produce, LLC was and is a corporation in good standing duly formed under and in accordance with the laws of the State of Georgia. Spring Hill Produce, LLC may be served with process through its registered agent, T. Mark Sandifer, at 3300 Fulwood Road, Tifton, Georgia 31794. 32. Defendant Brim is an organizer and manager of Spring Hill Produce, LLC. 33. At all times relevant to this Complaint, Defendant Lewis Taylor Farms was an employer of the Plaintiffs as defined by the FLSA, 29 U.S.C. 203(d), and by the H-2A regulations at 20 C.F.R. 655.100(b). 34. From 2002 through 2007, Defendant Brim was a corporate officer or manager with operational control of Defendant corporations, and was an employer of the Plaintiffs as defined by the FLSA, 29 U.S.C. 203(d), and by the H-2A regulations at 20 C.F.R. 655.100(b). 35. Bartolome Acosta ( Acosta ) is a field supervisor for Defendants farming operations. 36. Acosta was the agent of Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, Inc., Spring Hill Produce LLC, and Brim for each year identified in this Complaint 5
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 6 of 31 during which the respective entities were in existence. 37. All allegations in this Complaint pertaining to acts or omissions of Acosta were within the scope of his authority as an agent, and as such, Defendants are liable for Acosta s violations of law alleged in this Complaint. 38. In the years 2002 through 2006, Defendant Spring Hill Produce, Inc. was an employer of the Plaintiffs who worked during those years as defined by the FLSA, 29 U.S.C. 203(d), and by the H-2A regulations at 20 C.F.R. 655.100(b). 39. In the years 2005 through 2007, Defendant Quality Produce was an employer of the Plaintiffs who worked during those years as defined by the FLSA, 29 U.S.C. 203(d), and by the H-2A regulations at 20 C.F.R. 655.100(b). 40. In the year 2007, Defendant Spring Hill Produce, LLC was an employer of the Plaintiffs who worked during that year as defined by the FLSA, 29 U.S.C. 203(d), and by the H-2A regulations at 20 C.F.R. 655.100(b). 41. At all times relevant to this Complaint during which the respective entities were in existence, Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, Inc., Spring Hill Produce, LLC, and Brim were engaged in the harvesting and production of vegetables in and around Tift County, Georgia for sale in interstate commerce. 42. At all times relevant to this Complaint during which the respective entities were in existence, Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, Inc., Spring Hill Produce, LLC, and Brim constituted an enterprise engaged in the production of goods for commerce within the meaning of the FLSA, 29 U.S.C. 203(s)(1)(A). 6
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 7 of 31 IV. STATUTORY AND REGULATORY STRUCTURE OF THE H-2A PROGRAM 43. The H-2A program was created by 8 U.S.C. 1188 and is implemented pursuant to the regulations found at 20 C.F.R. 655.0-655.113. The H-2A program authorizes the lawful admission of temporary, non-immigrant workers to perform agricultural labor or services of a temporary nature. 44. Employers requesting H-2A workers must file a temporary labor certification application with the U.S. DOL Regional Administrator responsible for the area where the job is located. 20 C.F.R. 655.101(a)(1) and (b)(1). The application must include a job offer that complies with the requirements of 20 C.F.R. 655.102 and 653.501. See 20 C.F.R. 655.101(b). The job offer, commonly referred to as a clearance order or job order, is used to recruit both United States and H-2A workers. 45. The terms and conditions in the job order constitute an employment contract between the employer and employee. 46. As a condition of receiving temporary labor certification for the importation of H- 2A workers, agricultural employers are required to pay the highest of the adverse effect wage rate, or the federal or state minimum wage. 20 C.F.R. 655.102(b)(9)(i). The adverse effect wage rate (known as the AEWR ) is the weighted average hourly wage for field and livestock workers for the region as published annually by the U.S. Department of Agriculture in the Federal Register. 20 C.F.R. 655.107(a). 47. For each of their H-2A contracts, Defendants promised that each worker would earn at least the prevailing rate for the crop activity or at least the AEWR, whichever is higher, for all hours worked in the payroll period. 7
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 8 of 31 48. For each of their H-2A contracts, Defendants stated that [t]he payroll period shall be weekly. See Ex. D though R. 49. For each of their H-2A contracts, Defendants promised to abide by the assurances specified in the conditions of 20 C.F.R. Part 655, Subpart B, including the regulations at 20 C.F.R. 655.103, which included the promise that the employer shall comply with the applicable federal, state, and local employment-related laws and regulations, 20 C.F.R. 655.103(b), which includes the Fair Labor Standards Act. See Ex. D though R. 50. For each of their H-2A contracts, Defendants promised to pay each worker for costs incurred by the worker for transportation and subsistence from the place of recruitment to the place of employment if the worker completes 50% of the work contract period. See Ex. D though R. 51. For each of their H-2A contracts, Defendants promised to provide or pay for each worker s transportation and subsistence from the place of employment to the place of recruitment. See Ex. D though R. V. STATEMENT OF FACTS Job Order and Contract for Work in 2002 52. In the year 2002, Defendant Spring Hill Produce, Inc. submitted job order number GA7078229 proposing to employ 25 H-2A workers in and around Tift County, Georgia, for the period of May 25, 2002 to July 15, 2002. 53. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit D. 54. Plaintiff Pablo Arriaga-Zacarias was employed under the terms of the job order 8
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 9 of 31 attached as Exhibit D. First Job Order and Contract for Work in 2003 55. In the year 2002, Defendant Spring Hill Produce, Inc. submitted job order number GA7141595 proposing to employ 100 H-2A workers in and around Tift County, Georgia, for the period of December 31, 2002 through February 28, 2003. 56. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit E. Second Job Order and Contract for Work in 2003 57. In the year 2003, Defendant Lewis Taylor Farms submitted job order number GA7159198 proposing to employ 272 H-2A workers in and around Tift County, Georgia, for the period of March 1, 2003 through December 31, 2003. 58. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit F. 59. Defendant Brim signed the Employer s Certification and Declaration of Employer for the job order attached as Exhibit F. 60. Defendant Brim increased the number of workers to be hired under the job order attached as Exhibit F from 227 to 272 and initialed the change BB. First Job Order and Contract for Work in 2004 61. In the year 2003, Defendant Spring Hill Produce, Inc. submitted job order number GA7240036 proposing to employ 227 H-2A workers in and around Tift County, Georgia, for the period of January 5, 2004 through February 29, 2004. 62. A copy of the job order referenced in the immediately preceding paragraph is 9
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 10 of 31 attached as Exhibit G. Second Job Order and Contract for Work in 2004 63. In the year 2004, Defendant Lewis Taylor Farms submitted job order number GA7249416 proposing to employ 272 H-2A workers in and around Tift County, Georgia, for the period of March 1, 2004 through December 31, 2004. 64. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit H. 65. Defendant Brim signed the Employer s Certification and the Declaration of Employer for the job order attached as Exhibit H. 66. Plaintiffs Felix Rojas-Torres and Juan Hernandez-Hernandez were employed under the terms of the job order attached as Exhibit H. First Job Order and Contract for Work in 2005 67. In the year 2005, Defendant Quality Produce submitted job order number GA7344582 proposing to employ 150 H-2A workers in and around Tift County, Georgia, for the period of March 1, 2005 through July 15, 2005. 68. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit I. 69. Defendant Brim signed the Employer s Certification for the job order attached as Exhibit I. 70. Defendant Brim replaced Defendant Lewis Taylor Farms name on the job order attached as Exhibit I with Defendant Quality Produce and initialed the change BB. 71. Defendant Brim increased the number of workers to be hired from 125 to 150 on 10
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 11 of 31 the job order attached as Exhibit I and initialed the change BB. 72. Plaintiff Nelson Rivera-Martinez was employed under the terms of the job order attached as Exhibit I. Second Job Order and Contract for Work in 2005 73. In the year 2005, Defendant Quality Produce submitted job order number GA7378927 proposing to employ 200 H-2A workers in and around Tift County, Georgia, for the period of July 16, 2005 through December 31, 2005. 74. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit J. 75. Defendant Brim signed the Employer s Certification and the Declaration of Employer for the job order attached as Exhibit J. 76. Plaintiff Felix Rojas-Torres was employed under the terms of the job order attached as Exhibit J. First Job Order and Contract for Work in 2006 77. In the year 2005, Defendant Spring Hill Produce, LLC submitted job order number GA7435348 proposing to employ 150 H-2A workers in and around Tift County, Georgia, for the period of January 1, 2006 through July 31, 2006. 78. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit K. 79. Plaintiff Jose Alfredo Cano-Aquino was employed under the terms of the job order attached as Exhibit K. 11
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 12 of 31 Second Job Order and Contract for Work in 2006 80. In the year 2006, Defendant Quality Produce submitted job order number GA7449246 proposing to employ 222 H-2A workers in and around Tift County, Georgia, for the period of March 10, 2006 through July 15, 2006. 81. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit L. 82. Defendant Brim signed the Employer s Certification and the Declaration of Employer for the job order attached as Exhibit L. 83. Plaintiff Nelson Rivera-Martinez was employed under the terms of the job order attached as Exhibit L. Third Job Order and Contract for Work in 2006 84. In the year 2006, Defendant Quality Produce submitted job order number GA7473848 proposing to employ 100 H-2A workers in and around Tift County, Georgia, for the period of May 25, 2006 through July 15, 2006. 85. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit M. 86. Defendant Brim signed the Employer s Certification and the Declaration of Employer for the job order attached as Exhibit M. 87. Plaintiffs Pablo Arriaga-Zacarias, Francisco Javier Perez-Delgado, Rafael Najera- Castillo, and Juan Hernandez-Banda were employed under the terms of the job order attached as Exhibit M. 12
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 13 of 31 Fourth Job Order and Contract for Work in 2006 88. In the year 2006, Defendant Quality Produce submitted job order number GA7494925 proposing to employ 477 H-2A workers in and around Tift County, Georgia, for the period of July 20, 2006 through December 31, 2006. 89. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit N. 90. Defendant Brim signed the Employer s Certification and the Declaration of Employer for the job order attached as Exhibit N. First Job Order and Contract for Work in 2007 91. In the year 2006, Defendant Spring Hill Produce, LLC submitted job order GA7542645 proposing to employ 150 H-2A workers in and around Tift County, Georgia, for the period of January 13, 2007 through July 31, 2007. 92. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit O. 93. The signature page containing the Employer s Certification for the job order attached as Exhibit O was faxed from Defendant Lewis Taylor Farms. Second Job Order and Contract for Work in 2007 94. In the year 2007, Defendant Quality Produce submitted job order number GA7557350 proposing to employ 327 H-2A workers in and around Tift County, Georgia, for the period of March 12, 2007 through July 15, 2007. 95. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit P. 13
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 14 of 31 96. Defendant Brim signed the Employer s Certification and the Declaration of Employer for the job order attached as Exhibit P. 97. Plaintiff Rafael Najera-Castillo was employed under the terms of the job order attached as Exhibit P. Third Job Order and Contract for Work in 2007 98. In the year 2007, Defendant Quality Produce submitted job order number GA7591859 proposing to employ 327 H-2A workers in and around Tift County, Georgia, for the period of July 16, 2007 through December 31, 2007. 99. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit Q. 100. Defendant Brim signed the Employer s Certification for the job order attached as Exhibit Q. Fourth Job Order and Contract for Work in 2007 101. In the year 2007, Defendant Quality Produce submitted job order number GA7596483 proposing to employ 180 H-2A workers in and around Tift County, Georgia, for the period of August 1, 2007 to December 31, 2007. 102. A copy of the job order referenced in the immediately preceding paragraph is attached as Exhibit R. 103. Defendant Brim signed the Employer s Certification and the Declaration of Employer for the job order attached as Exhibit R. Facts Common to Each Job Order/Contract 104. The job orders filed by Defendants were express written employment contracts 14
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 15 of 31 between Defendants and Plaintiffs. 105. Each H-2A contract promised that the Plaintiffs employed under its terms would earn, at a minimum, the hourly wage set by the United States Department of Labor, which is called the Adverse Effect Wage Rate ( AEWR ). 106. Under the 2002 employment contracts, Defendants promised to pay Plaintiffs the applicable AEWR, which was raised to $7.28 per hour effective May 17, 2002. 67 Fed. Reg. 35150 (May 17, 2002). 107. Under the 2003 employment contracts, Defendants promised to pay Plaintiffs the applicable AEWR, which was raised to $7.49 per hour effective February 26, 2003. 68 Fed. Reg. 8929 (Feb. 26, 2003). 108. Under the 2004 employment contracts, Defendants promised to pay Plaintiffs the applicable AEWR, which was raised to $7.88 per hour effective March, 3, 2004. 69 Fed. Reg. 10063 (March 3, 2004). 109. Under the 2005 employment contracts, Defendants promised to pay Plaintiffs the applicable AEWR, which was raised to $8.07 per hour effective March 2, 2005. 70 Fed. Reg. 10152 (March 2, 2005). 110. Under the 2006 employment contracts, Defendants promised to pay Plaintiffs the applicable AEWR, which was raised to $8.37 per hour effective March 16, 2006. 71 Fed. Reg. 13634 (March 16, 2006). 111. Under the 2007 employment contracts, Defendants promised to pay Plaintiffs the applicable AEWR, which was raised to $8.51 per hour effective February 21, 2007. 72 Fed. Reg. 7910 (Feb. 21, 2007). 15
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 16 of 31 112. Each job order filed by Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, Inc., or Spring Hill Produce, LLC in 2002, 2003, 2004, 2005, 2006, and 2007 contained an Employer s Certification that stated This job order describes the actual terms and conditions of the employment being offered by me and contains all the material terms and conditions of the job. Recruitment, Hiring, and Expenses of Plaintiff Workers 113. For each of the job orders (H-2A contracts) referenced above under which they were employed, Plaintiffs were recruited in their home villages in the Mexican states of Tabasco, Tamaulipas, and San Luis Potosí, Mexico for work with Defendants in and around Tift County, Georgia. 114. Acosta recruited Plaintiffs and others similarly situated from their villages in Mexico by telephone and fax and through a network of contacts in Mexico. 115. Acosta prepared a list of workers which was approved by Defendant Brim and forwarded by Defendants to the U.S. Consulate in Monterrey, Mexico for issuance of H-2A visas, under the job orders obtained by Defendants, to the workers listed on Acosta s recruitment list. 116. Defendants ratified Acosta s recruitment actions by forwarding the list of workers prepared by Acosta to the U.S. Consulate to receive H-2A visas to work for Defendants in and around Tift County, Georgia. 117. At the time of Plaintiffs recruitment, Defendants offered and Plaintiffs accepted in their local villages, employment with the Defendants under the terms of Defendants respective H-2A contracts. 16
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 17 of 31 118. After receiving a hiring commitment from Defendants agent, Plaintiffs and others similarly situated were required to travel from their home villages in order to arrive in Monterrey, Nuevo Leon, Mexico, on a specific day for the interview with the U.S. Consulate in Monterrey necessary to obtain an H-2A visa. 119. Plaintiffs and others similarly situated had to pay their own travel and subsistence costs from their home villages to Monterrey, Mexico. 120. For each H-2A contract under which they were employed, Plaintiffs and others similarly situated were required to purchase, at their own expense, a Derecho de Visa, a visa reciprocity fee paid at the Mexican bank Banamex. 121. The cost of the visa reciprocity fee was $45 until November 1, 2002. From November 1, 2002 through 2007, the cost of the visa reciprocity fee was $100. 122. In order to obtain an H-2A visa, Plaintiffs and others similarly situated were required to purchase, at their own expense, a Mexican passport. 123. In order to obtain an H-2A visa, Plaintiffs and others similarly situated were required to pay, at their own expense, a processing fee and a $100 visa fee. 124. Plaintiffs and others similarly situated were required to pay for their own hotel costs while they waited for the issuance of their visas in Monterrey, Mexico, following their interview with the U.S. Consulate. 125. Following the issuance of their H-2A visas, Plaintiffs and others similarly situated boarded a bus for their trip to Defendants operations in Georgia. 126. Plaintiffs and others similarly situated were required to pay for the bus from Monterrey, Mexico to Georgia at their own expense. 17
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 18 of 31 127. For each Plaintiff and other similarly situated worker, the cost of the bus from Monterrey, Mexico to Georgia exceeded $100. 128. Plaintiffs and others similarly situated were required to pay for their own daily subsistence costs during their stay in Monterrey, Mexico and their journey from Monterrey, Mexico to Defendants farming operations in Georgia. 129. For each H-2A contract under which they were employed, each Plaintiff and other similarly situated worker was required to pay a $6.00 fee, formerly to the Immigration and Naturalization Service and later to the Bureau of Customs and Immigration Services when they entered the United States west of Laredo, Texas. This fee was for the issuance of the INS form I- 94 required to enter the U.S. Defendants Failures to Properly Pay and Reimburse Plaintiffs 130. Each Plaintiff and similarly situated worker expended in excess of $350 for immigration, travel, and subsistence expenses 131. The expenditures set out in paragraphs 118 through 129 were primarily for the benefit of Defendants within the meaning of 29 C.F.R. 531.32(c) and 778.217. 132. Plaintiffs and others similarly situated made the aforesaid expenditures before receipt of their first pay checks in each contract period in which they worked. 133. In each year relevant to this Complaint during which the Plaintiffs and other similarly situated workers came to Georgia to work for Defendants, Defendants failed to reimburse Plaintiffs and other similarly situated workers during the first workweek for the costs described in paragraphs 118 through 129 to the extent that the costs brought Plaintiffs and other similarly situated workers first week s wages below the federal minimum wage. 18
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 19 of 31 134. In each year during which the Plaintiffs came to Georgia to work for Defendants, Defendants also failed to pay Plaintiffs transportation and daily subsistence reimbursement by each contract s 50% point as required by the terms of Plaintiffs contracts. 135. Defendants did not pay Plaintiffs and other similarly situated workers at least an average of the applicable minimum wage for all compensable time, including time spent waiting in the fields to begin work, and time spent traveling from field to field. 136. Defendants intentionally falsified the number of hours that appeared on Plaintiffs and other similarly situated workers paychecks so as to avoid paying Plaintiffs and others similarly situated at least their minimum hourly wages for all hours worked in a work week. 137. Upon information and belief, Defendants failed to supplement Plaintiffs and other similarly situated workers piece-rate earnings to ensure that Plaintiffs and other similarly situated workers average hourly earnings were at or above the applicable minimum wage. 138. For each contract in which Plaintiffs participated and which has been completed to date, Defendants failed to pay or provide Plaintiffs the cost of return transportation and subsistence as required by the terms of Plaintiffs contracts. VI. CLAIMS FOR RELIEF COUNT I FLSA Minimum Wage 139. Plaintiffs and others similarly situated incorporate the preceding paragraphs by reference. 140. This count sets forth a claim for declaratory relief and damages for Defendants violations of the FLSA for each contract under which Plaintiffs and other similarly situated 19
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 20 of 31 workers were employed during 2005, 2006, and 2007. 141. Plaintiffs file this count on behalf of themselves and others similarly situated pursuant to 29 U.S.C. 216(b). 142. Plaintiffs Julio Cesar Cano-Estrada, Nelson Rivera-Martinez, and Felix Rojas- Torres assert this claim against Defendants Lewis Taylor Farms, Quality Produce, and Brim for the 2005 season. 143. Plaintiffs Tilo Sarracino-Hernandez, Pablo Arriaga-Zacarias, Rafael Najera- Castillo, Francisco Javier Perez-Delgado, Juan Hernandez-Banda, Jose Alfredo Cano-Aquino, Juan Jose Alber-De la Cruz, Julio Cesar Cano-Estrada, Luis Enrique Ochoa-Ramirez, Juan Hernandez-Hernandez, and Nelson Rivera-Martinez assert this claim against Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, Inc., and Brim for the 2006 season. 144. Plaintiffs Julio Cesar Cano-Estrada and Rafael Najera-Castillo assert this claim against Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, LLC, and Brim for the 2007 season. 145. Defendants violated the rights of Plaintiffs and other similarly situated workers by failing to pay to each worker at least an average of the applicable minimum wage ($5.15 per hour) for every compensable hour of labor performed in a workweek, in violation of 29 U.S.C. 206(a). 146. The violations of the FLSA stated in this count resulted in part from the failure to reimburse expenses which were incurred by Plaintiffs and other similarly situated workers primarily for the benefit or convenience of Defendants, prior to the Plaintiffs and other similarly situated workers first week of work. When these expenses are calculated as deductions from 20
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 21 of 31 Plaintiffs and other similarly situated workers first week s pay, as required by law, they cause Plaintiffs and other similarly situated workers first week s earnings to be negative, bringing the Plaintiffs and other similarly situated workers earnings well below the minimum wage for that pay period. 147. The violations stated in this count resulted in part from Defendants failure to pay Plaintiffs and others similarly situated for all hours worked, as set forth in paragraphs 135 through 137 above. 148. As a result of the Defendants violations of the FLSA set forth in this count, each Plaintiff and other similarly situated worker is entitled to recover the amount of their unpaid minimum wages and an equal amount in liquidated damages, pursuant to 29 U.S.C. 216(b). 149. Defendants violations set out in Count I were willful within the meaning of the FLSA. COUNT II Breach of Employment Contract Failure to Pay the Federal Minimum Wage 150. Plaintiffs incorporate the preceding paragraphs by reference. 151. This count sets forth Plaintiffs claims for declaratory relief and damages for Defendants breach of the Assurances provision contained in Plaintiffs employment contracts. 152. Plaintiffs Tilo Sarracino-Hernandez, Pablo Arriaga-Zacarias and Juan Hernandez- Hernandez assert this claim against Defendants Lewis Taylor Farms, Spring Hill Produce, Inc., and Brim for their 2002 contracts. 153. Plaintiffs Tilo Sarracino-Hernandez and Julio Cesar Cano-Estrada assert this claim against Defendants Lewis Taylor Farms and Brim for their 2003 contracts. 21
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 22 of 31 154. Plaintiffs Tilo Sarracino-Hernandez, Rafael Najera-Castillo, Juan Hernandez- Hernandez, Julio Cesar Cano-Estrada, and Felix Rojas-Torres assert this claim against Defendants Lewis Taylor Farms, Spring Hill Produce, Inc., and Brim for their 2004 contracts. 155. Plaintiffs Julio Cesar Cano-Estrada, Nelson Rivera-Martinez, and Felix Rojas- Torres assert this claim against Defendants Lewis Taylor Farms, Quality Produce, and Brim for their 2005 contracts. 156. Plaintiffs Tilo Sarracino-Hernandez, Pablo Arriaga-Zacarias, Rafael Najera- Castillo, Francisco Javier Perez-Delgado, Juan Hernandez-Banda, Jose Alfredo Cano-Aquino, Juan Jose Alber-De la Cruz, Julio Cesar Cano-Estrada, Luis Enrique Ochoa-Ramirez, Juan Hernandez-Hernandez, and Nelson Rivera-Martinez assert this claim against Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, Inc., and Brim for their 2006 contracts. 157. Plaintiffs Julio Cesar Cano-Estrada and Rafael Najera-Castillo assert this claim against Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, LLC, and Brim for their 2007 contracts. 158. For each contract under which each Plaintiff was employed, Defendants offered, and Plaintiffs accepted, employment on specific terms and conditions. 159. Among the terms that Defendants offered and that Plaintiffs accepted was Defendants agreement to abide by the assurances specified in the conditions of 20 C.F.R. Part 655, Subpart B, including the regulations at 20 C.F.R. 655.103. See Ex. D to R. 160. The assurances specified in 20 C.F.R. Part 655, Subpart B include the requirement that the employer shall pay the worker 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 22
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 23 of 31 wage, whichever is highest, for every hour or portion thereof worked during a pay period. 20 C.F.R. 655.102(b)(9). 161. The assurances incorporated into the written contract by reference to 20 C.F.R. 655.103 include the requirement that an H-2A employer comply with applicable federal, State, and local employment-related laws and regulations, including employment-related health and safety laws. 162. Defendants breached their contracts when they failed to pay Plaintiffs at least the applicable federal minimum wage for each compensable hour of work in a workweek. 163. The breach asserted in this count resulted in part from Defendants failure to reimburse Plaintiffs for expenses Plaintiffs incurred primarily for the benefit of Defendants, as specified in paragraphs 118 through 129. When these expenses are calculated as deductions from Plaintiffs pay, as required by law, they bring the Plaintiffs earnings below the minimum wage for the applicable pay periods. 164. The violations stated in this count resulted in part from Defendants failure to pay Plaintiffs for all hours worked, as set forth in paragraphs 135 through 137 above. 165. As a direct consequence of Defendants breach of their employment contracts, Plaintiffs suffered economic injury. 166. 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 O.C.G.A. 13-6-2, including unpaid wages, damages arising from the delay, and pre-judgment interest. 23
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 24 of 31 COUNT III Breach of Employment Contract- Failure to Pay Contract Wage for All Hours Worked 167. Plaintiffs incorporate all the preceding paragraphs by reference. 168. This count sets forth Plaintiffs claim for declaratory relief and damages for Defendants breach of the rate of pay provision contained in Plaintiffs employment contracts. 169. Plaintiffs Tilo Sarracino-Hernandez, Pablo Arriaga-Zacarias, and Juan Hernandez- Hernandez assert this claim against Defendants Lewis Taylor Farms, Spring Hill Produce, Inc., and Brim for their 2002 contracts. 170. Plaintiffs Tilo Sarracino-Hernandez and Julio Cesar Cano-Estrada assert this claim against Defendants Lewis Taylor Farms and Brim for their 2003 contracts. 171. Plaintiffs Tilo Sarracino-Hernandez, Rafael Najera-Castillo, Juan Hernandez- Hernandez, Felix Rojas-Torres, and Julio Cesar Cano-Estrada assert this claim against Defendants Lewis Taylor Farms, Spring Hill Produce, Inc., and Brim for their 2004 contracts. 172. Plaintiffs Julio Cesar Cano-Estrada, Felix Rojas-Torres, and Nelson Rivera- Martinez assert this claim against Defendants Lewis Taylor Farms, Quality Produce, and Brim for their 2005 contracts. 173. Plaintiffs Tilo Sarracino-Hernandez, Pablo Arriaga-Zacarias, Rafael Najera- Castillo, Francisco Javier Perez-Delgado, Juan Hernandez-Banda, Jose Alfredo Cano-Aquino, Juan Jose Alber-De la Cruz, Julio Cesar Cano-Estrada, Luis Enrique Ochoa-Ramirez, Juan Hernandez-Hernandez, Felix Rojas-Torres, and Nelson Rivera-Martinez assert this claim against Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, Inc., and Brim for their 2006 contracts. 24
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 25 of 31 174. Plaintiffs Rafael Najera-Castillo and Julio Cesar Cano-Estrada assert this claim against Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, LLC, and Brim for their 2007 contracts. 175. For each contract under which each Plaintiff was employed, Defendants offered, and Plaintiffs accepted, employment on specific terms and conditions. 176. Among the terms that Defendants offered and Plaintiffs accepted was payment of at least the applicable AEWR for each hour worked. 177. The violations stated in this count resulted in part from Defendants failure to pay Plaintiffs for all hours worked, as set forth in paragraphs 135 through 137 above. 178. Upon information and belief, the violations stated in this count resulted in part from Defendants failure to supplement Plaintiffs piece-rate earnings to ensure that Plaintiffs average hourly earnings were at or above the minimum hourly guarantee of the AEWR for the pay period. 179. Defendants breached their employment contracts with Plaintiffs by failing to pay Plaintiffs the contract wage for all hours worked. 180. As a direct consequence of Defendants breach of their employment contracts, Plaintiffs suffered economic injury. 181. 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 O.C.G.A. 13-6-2, including unpaid wages, damages arising from the delay, and pre-judgment interest. 25
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 26 of 31 COUNT IV Breach of Employment Contract Failure to Timely Pay Inbound Travel and Subsistence Reimbursement at 50% Point of Contract 182. Plaintiffs incorporate all the preceding paragraphs by reference. 183. This count sets forth Plaintiffs claim for declaratory relief and damages for Defendants breach of the Transportation provision of Plaintiffs employment contracts. 184. Plaintiffs Tilo Sarracino-Hernandez, Pablo Arriaga-Zacarias, and Juan Hernandez- Hernandez assert this claim against Defendants Lewis Taylor Farms, Spring Hill Produce, Inc., and Brim for their 2002 contracts. 185. Plaintiffs Tilo Sarracino-Hernandez and Julio Cesar Cano-Estrada assert this claim against Defendants Lewis Taylor Farms and Brim for their 2003 contracts. 186. Plaintiffs Tilo Sarracino-Hernandez, Rafael Najera-Castillo, Juan Hernandez- Hernandez, Felix Rojas-Torres, and Julio Cesar Cano-Estrada assert this claim against Defendants Lewis Taylor Farms, Spring Hill Produce, Inc., and Brim for their 2004 contracts. 187. Plaintiffs Julio Cesar Cano-Estrada, Felix Rojas-Torres and Nelson Rivera- Martinez assert this claim against Defendants Lewis Taylor Farms, Quality Produce, and Brim for their 2005 contracts. 188. Plaintiffs Tilo Sarracino-Hernandez, Pablo Arriaga-Zacarias, Rafael Najera- Castillo, Francisco Javier Perez-Delgado, Juan Hernandez-Banda, Jose Alfredo Cano-Aquino, Juan Jose Alber-De la Cruz, Julio Cesar Cano-Estrada, Luis Enrique Ochoa-Ramirez, Juan Hernandez-Hernandez, and Nelson Rivera-Martinez assert this claim against Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, Inc., and Brim for their 2006 contracts. 26
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 27 of 31 189. Plaintiffs Rafael Najera-Castillo and Julio Cesar Cano-Estrada assert this claim against Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, LLC, and Brim for their 2007 contracts. 190. For each year in which Plaintiffs worked for Defendants, Defendants offered, and Plaintiffs accepted, employment on specific terms and conditions. 191. Among the terms which Defendants offered and Plaintiffs accepted was full reimbursement of inbound travel and subsistence expenses after completion of 50% of the work contract. 192. Defendants breached their employment contracts with Plaintiffs by failing to pay the transportation and subsistence reimbursement. 193. As a direct consequence of Defendants breach of the employment contract, Plaintiffs suffered economic injury. 194. 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 O.C.G.A. 13-6-2, including unpaid amounts of the transportation and subsistence reimbursement, damages arising from the delay, and pre-judgment interest. COUNT V Breach of Employment Contract Failure to Pay Return Travel and Subsistence Costs 195. Plaintiffs incorporate all the preceding paragraphs by reference. 196. This count sets forth Plaintiffs claim for declaratory relief and damages for Defendants breach of the Transportation provision of Plaintiffs employment contracts. 197. Plaintiffs Tilo Sarracino-Hernandez, Pablo Arriaga-Zacarias, and Juan Hernandez- 27
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 28 of 31 Hernandez assert this claim against Defendants Lewis Taylor Farms, Spring Hill Produce, Inc., and Brim for their 2002 contracts. 198. Plaintiffs Tilo Sarracino-Hernandez and Julio Cesar Cano-Estrada assert this claim against Defendants Lewis Taylor Farms and Brim for their 2003 contracts. 199. Plaintiffs Tilo Sarracino-Hernandez, Rafael Najera-Castillo, Juan Hernandez- Hernandez, Felix Rojas-Torres, and Julio Cesar Cano-Estrada assert this claim against Defendants Lewis Taylor Farms, Spring Hill Produce, Inc., and Brim for their 2004 contracts. 200. Plaintiffs Julio Cesar Cano-Estrada, Felix Rojas-Torres, and Nelson Rivera- Martinez assert this claim against Defendants Lewis Taylor Farms, Quality Produce, and Brim for their 2005 contracts. 201. Plaintiffs Tilo Sarracino-Hernandez, Pablo Arriaga-Zacarias, Rafael Najera- Castillo, Juan Hernandez-Banda, Jose Alfredo Cano-Aquino, Juan Jose Alber-De la Cruz, Julio Cesar Cano-Estrada, Luis Enrique Ochoa-Ramirez, Juan Hernandez-Hernandez, Felix Rojas- Torres, and Nelson Rivera-Martinez assert this claim against Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, Inc., and Brim for their 2006 contracts. 202. Plaintiffs Rafael Najera-Castillo and Julio Cesar Cano-Estrada assert this claim against Defendants Lewis Taylor Farms, Quality Produce, Spring Hill Produce, LLC, and Brim for their 2007 contracts. 203. For each year in which Plaintiffs worked for Defendants, Defendants offered, and Plaintiffs accepted, employment on specific terms and conditions. 204. Among the terms which Defendants offered and Plaintiffs accepted was full payment of return transportation and subsistence to the place from which each Plaintiff had come 28
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 29 of 31 to work for the Defendants. 205. Defendants breached their employment contracts with Plaintiffs by failing to pay the full costs of return transportation and subsistence to the place from which each Plaintiff had come to work for Defendants. 206. As a direct consequence of Defendants breach of the employment contract, Plaintiffs suffered economic injury. 207. Defendants are liable to Plaintiffs for the damages that arose naturally and according to the usual course of things from Defendant s breach, as provided by O.C.G.A. 13-6-2, including unpaid transportation and subsistence costs, damages arising from the delay, and pre-judgment interest. WHEREFORE, Plaintiffs and others similarly situated respectfully request that this Court grant them the following relief (a) Under Count I 1. Allow this action to proceed as a collective action with respect to the FLSA minimum wage claim (Count I), pursuant to 29 U.S.C. 216(b), for all H-2A workers employed by Defendants during 2005, 2006 and 2007; 2. Declare that Defendants have willfully violated the FLSA as specified in the allegations of Count I of this Complaint; 3. Grant judgment against Defendants jointly and severally for the years 2005, 2006, and 2007, and in favor of Plaintiffs and similarly situated workers employed by Defendants, in the amount of their unpaid wages as proved at trial, plus an equal amount in liquidated damages, pursuant to 29 U.S.C. 216(b); 29
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 30 of 31 (b) Under Count II 1. Declare that Defendants have breached the contract as specified in the allegations of Count II of this Complaint; 2. Grant judgment against Defendants and in favor of Plaintiffs in the amount of their actual, incidental and consequential damages; (c) Under Count III 1. Declare that Defendants have breached the employment contract as specified in the allegations of Count III of this Complaint; 2. Grant judgment against Defendants and in favor of Plaintiffs in the amount of their actual, incidental and consequential damages; (d) Under Count IV 1. Declare that Defendants have breached the contract as specified in the allegations of Count IV of this Complaint; 2. Grant judgment against Defendants and in favor of Plaintiffs in the amount of their actual, incidental and consequential damages; (e) Under Count V 1. Declare that Defendants have breached the contract as specified in the allegations of Count V of this complaint; 2. Grant judgment against Defendants and in favor of Plaintiffs in the amount of their actual, incidental and consequential damages; (f) Award Plaintiffs and others similarly situated pre-judgment interest as allowed by law; (g) Cast all costs upon Defendants; and 30
Case 708-tc-05000 Document 16 Filed 03/06/2008 Page 31 of 31 (h) Award Plaintiffs and others similarly situated such further relief, at law or in equity, as this Court deems just and proper. Respectfully submitted this 6th day of March, 2008 _s/ Rebecca M. Heinegg Rebecca M. Heinegg Georgia Bar No. 534518 Rebecca Miller Georgia Bar No. 489898 Dawson Morton Georgia Bar No. 525985 Lisa J. Krisher Georgia Bar No. 429762 104 Marietta Street, Suite 250 Atlanta, Georgia 30303 Tel. 404-463-1633 Fax. 404-463-1623 William J. Cobb Georgia Bar No. 171850 Cobb & Gardner, LLP 755 Commerce Drive, Suite 800 Decatur, Georgia 30030 Tel. 404-601-4120 Fax. 404-601-4133 ATTORNEYS FOR PLAINTIFFS 31