FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIAS BOBADILLA-GERMAN; JACOBO 

BOBADILLA-GERMAN; VICENTE

FIMBRES ROMERO; MAURO GERMANSANCHEZ; GILBERTO PADILLA-ORTIZ;

VICTOR VILLANUEVA-HERNANDEZ;

DARIO ANGEL VILLEGAS-MEZA,

Plaintiffs-Appellants, No. 10-35205

and  D.C. No.

JOSE DE JESUS GAETA BAUTISTA; 1:07-cv-03058-PA

BENJAMIN URBALEJO-RODRIGUEZ,

Plaintiffs,

v.

BEAR CREEK ORCHARDS, INC., a

Delaware corporation,

Defendant-Appellee. 

ELIAS BOBADILLA-GERMAN; JACOBO 

BOBADILLA-GERMAN; VICENTE

FIMBRES ROMERO; MAURO GERMANSANCHEZ; GILBERTO PADILLA-ORTIZ; No. 10-35268 VICTOR VILLANUEVA-HERNANDEZ;

DARIO ANGEL VILLEGAS-MEZA, D.C. No.  Plaintiffs-Appellees, 1:07-cv-03058-PA

v. OPINION

BEAR CREEK ORCHARDS, INC., a

Delaware corporation,

Defendant-Appellant. 

4985
Appeals from the United States District Court

for the District of Oregon

Owen M. Panner, Senior District Judge, Presiding

Argued and Submitted

March 11, 2011—Portland, Oregon

Filed April 12, 2011

Before: Sidney R. Thomas and Susan P. Graber,

Circuit Judges, and James V. Selna,* District Judge.*

Opinion by Judge Thomas

*The Honorable James V. Selna, District Judge for the U.S. Central

District of California, Santa Ana, sitting by designation. 

4986 BOBADILLA-GERMAN v. BEAR CREEK
COUNSEL

Mark J. Wilk, Oregon Law Center, Woodburn, Oregon, for

the plaintiffs-appellants/cross-appellees.

Brenda K. Baumgart, Barran Liebman LLP, Portland, Oregon,

for the defendant-appellee/cross-appellant.

Denise G. Fjordbeck, Assistant Attorney General, Appellate

Division, Office of the Oregon Attorney General, Salem, Oregon, for the amicus curiae.

OPINION

THOMAS, Circuit Judge:

In these appeals, we consider whether certain on-site housing costs of seasonal farm workers can be credited toward the

minimum wage set by Oregon statute. Under the circumstances presented by this case, we conclude that they may not.

We also conclude that the workers in this case were entitled

to be paid on the last workday, rather than the following day.

4988 BOBADILLA-GERMAN v. BEAR CREEK
I

Bear Creek Orchards, Inc., operates peach and pear

orchards in Medford, Oregon. It hires seasonal workers to

pick the orchards over the course of a month-long harvest.

Bear Creek typically hires about 50 workers to pick peaches

and 300 to pick pears.

In recent years, at least three-fourths of Bear Creek’s seasonal workers have been recruited from the San Luis, Arizona, area. Once recruited, these workers traveled from their

permanent homes in Arizona to Oregon for the month-long

harvest. 

As part of their compensation, workers were offered

optional on-site housing and meals. Bear Creek charged

between five and seven dollars a day for housing and

deducted this amount from the workers’ paychecks and credited it toward their minimum wage. The company, though,

deducted housing costs from a worker’s paycheck only if he

or she completed a deduction-authorization form. In many

instances, if housing costs were not credited toward the workers’ minimum wage, their wage would have been below the

lawful minimum wage. 

During the 2004-2006 harvests, workers were generally

given their final paychecks on the morning after their last day

of work.

II

Several workers filed a class-action lawsuit against Bear

Creek. The class, represented by 12 named plaintiffs, alleged

violations of the Migrant and Seasonal Agricultural Worker

Protection Act, 29 U.S.C. §§ 1801-1872, as well as Oregon’s

minimum wage laws.1 Several plaintiffs, suing individually,

1The district court exercised supplemental jurisdiction over the state-law

claims under 28 U.S.C. § 1367. 

BOBADILLA-GERMAN v. BEAR CREEK 4989
also claimed that Bear Creek violated Oregon law by failing

to pay their wages when due after their employment ended.

The district court held a bench trial and issued its Findings of

Fact and Conclusions of Law. 

The district court ruled in favor of the workers on some

claims and in favor of Bear Creek on others. The workers

appeal only one claim. They argue that Bear Creek violated

Oregon’s minimum wage laws by crediting on-site housing

costs toward the workers’ minimum wage. The district court

disagreed, concluding that Bear Creek lawfully credited the

costs because on-site housing was optional and was provided

for the workers’ private benefit. The workers argue on appeal

that the district court misapplied Oregon state law in reaching

this conclusion.

Bear Creek cross-appeals on a different claim. The district

court concluded that Bear Creek violated Oregon law by paying its workers the day after their last workday. Under Oregon

law, the court concluded, employers must pay seasonal farm

workers on the last workday. The district court awarded the

individual plaintiffs one day’s pay as damages. Bear Creek

argues on appeal that the district court misapplied Oregon

state law in reaching this conclusion. 

The district court had jurisdiction over the workers’ federal

claims under 29 U.S.C. § 1854. It had supplemental jurisdiction over the state-law claims under 28 U.S.C. § 1367. We

have jurisdiction over the appeals under 28 U.S.C. § 1291.

III

Following a bench trial, we “review[ ] the district court’s

findings of fact for clear error and its conclusions of law de

novo.” United States v. Bell, 602 F.3d 1074, 1079 (9th Cir.

2010) (citing Crockett & Myers, Ltd v. Napier, Fitzgerald &

Kirby, LLP, 583 F.3d 1232, 1236 (9th Cir. 2009)), cert.

denied, 131 S. Ct. 653 (2010).

4990 BOBADILLA-GERMAN v. BEAR CREEK
The district court erred when it concluded that Bear Creek

lawfully credited on-site housing costs toward the workers’

minimum wage. The district court properly concluded that

Bear Creek violated Oregon law by paying its workers the day

after their last workday.

A

[1] Oregon law allows employers to deduct from a worker’s minimum wage the “fair market value of lodging, meals

or other facilities or services furnished by the employer for

the private benefit of the employee.” Or. Rev. Stat.

§ 653.035(1) (emphasis added). “Private benefit” is defined in

Oregon’s Administrative Rules: 

Lodging or other facilities or services are furnished

for the private benefit of the employee when such

lodging or other facilities or services are not required

by the employer. For purposes of this rule, lodging

or other facilities or services are required by the

employer when:

(a) Acceptance of the lodging or other facilities is a

condition of the employee’s employment; or 

(b) The expense is incurred by an employee who

must travel away from the employee’s home on the

employer’s business; or

(c) The acceptance of the lodging or other facilities

or services is involuntary or coerced; or 

(d) The provision of lodging or other facilities or services is necessary in order for the employer to maintain an adequate work force at the times and

locations the employer needs them.

Or. Admin. R. 839-020-0025(7).

BOBADILLA-GERMAN v. BEAR CREEK 4991
The district court concluded that none of the four subsections applied and, as a result, the on-site housing was provided to the workers for their private benefit and could be

credited toward their minimum wage. In particular, it concluded subsection (b) did not apply because the workers were

not “traveling salesmen temporarily away from home on their

employer’s business.” And it concluded subsection (d) did not

apply because it applies only to “situations where an ‘on call’

employee must reside at employer-furnished housing.” We

hold that subsection (d) applies here; we therefore need not

address the district court’s determination with respect to subsection (b).

[2] As the workers and the State of Oregon (as amicus)

argue on appeal, subsection (d) applies here because Bear

Creek would not have been able to maintain its workforce in

the absence of on-site housing. The district court concluded

subsection (d) applies only to on-call workers (e.g., hotel

attendants), but the court did not provide any justification for

why subsection (d) should be read more narrowly than its

plain text. Under the plain text of subsection (d), a court must

simply ask the question—Without the furnished housing,

would the employer be able “to maintain an adequate work

force at the times and locations the employer needs them”?

Or. Admin. R. 839-020-0025(7)(d). 

[3] The district court found that Bear Creek’s on-site housing “facilitate[s] recruitment of migrant harvest workers” and

that “Bear Creek . . . benefits in a variety of ways by offering

employee housing.” But, more than that, the record establishes that Bear Creek would not be able to “maintain an adequate work force at the times and locations [Bear Creek

needed] them.” Or. Admin. R. 839-020-0025(7)(d). Indeed,

nearly all of the workers lived in the on-site housing. 

Bear Creek’s recruiter for 2006, Gumercindo Iboa, stated

that Bear Creek would not be able to acquire the requisite

labor force if it did not offer housing:

4992 BOBADILLA-GERMAN v. BEAR CREEK
Q: So it’s the inability to fulfill all the labor needs

here that causes Bear Creek to recruit elsewhere?

A: Yes.

Q: Does having labor housing available to workers

help in the recruitment of out of town workers?

A: Absolutely.

Q: How does it help?

A: We are able to hire from outside and be able to,

and, or capable of housing these people in order for

us to get the fruit off the trees.

Q: If you didn’t have the housing, could you get the

labor?

A: No.

Q: Why is that?

A: No housing available for them.

Q: No housing available for them in Medford?

A: Uh-huh. Yes.

Q: So in terms of housing workers, the choice that

workers face comes down to having housing at Bear

Creek or there is no housing?

A: I agree, uh-huh.

And Benny Suarez, Jr., the supervisor in charge of Bear

Creek’s farm labor camps remarked, “[T]he majority of the

[workers] . . . would say if it wasn’t for housing, they

BOBADILLA-GERMAN v. BEAR CREEK 4993
wouldn’t come back.” According to a residential landlord in

the Medford area, who owns approximately 100 residential

units, the rental and hotel market in Medford would probably

not accommodate the 350 or so workers. 

In addition to allowing Bear Creek to marshal enough

employees, on-site housing ensures that workers will be ready

to pick peaches or pears in the morning. As Suarez testified

at trial, “It’s a benefit for the employer to have them ready to

go to work.” In his deposition, he explained:

Q: What did you understand to be the benefit that

Bear Creek Orchards receives from having workers

live in the camp?

A: Ah, they are ready when, for work in the mornings, they are ready to go to work.

Q: How does this differ from anybody who lives off

orchard who lives in town or in the area?

A: Well, for sure we know where they are there and

we pick them up in the buses and we can count that

their [sic] is no room for their vehicles to break and

not being there to go to work.

At trial, when asked, “Does the company need to have the

workers in the company housing in order to get the fruit

picked?” Suarez answered, “It’s to—yes.” Similarly, Iboa testified at trial that on-site housing “cuts us back on absenteeism, tardiness and, you know, the workers are available to

us.” In his deposition, Iboa stated: “[W]e don’t have [a] problem with attendance because they’re always there. . . . I think

that’s the main thing, I mean, they’re always available to us

when work is available.” 

[4] The record, then, shows that on-site housing was “necessary in order for [Bear Creek] to maintain an adequate work

4994 BOBADILLA-GERMAN v. BEAR CREEK
force at the times and locations [Bear Creek needed] them.”

Or. Admin. R. 839-020-0025(7)(d).

Bear Creek, though, maintains the district court correctly

concluded that subsection (d) applies only to on-call workers

and not to its seasonal farmworkers. In support of its argument, Bear Creek cites three administrative decisions where

the Oregon Bureau of Labor and Industries (“the Bureau”)

applied subsection (d) to on-call-type employees: In re Elisha,

Inc., No. 24-02, 25 BOLI 125 (2003); In re Jewel Schmidt,

No. 08-97, 15 BOLI 236 (1997); In re Rainbow Auto Parts &

Dismantlers, No. 24-91, 10 BOLI 66 (1991). But these decisions do not stand for the proposition that subsection (d)

applies only to on-call employees. As the State argued in its

amicus brief, “While the rule is applicable to ‘on call’

employees, as the district court found, it is also applicable in

other instances, such as the present case, in which the

employer provides lodging because it is otherwise unable to

meet its need for workers.” 

Bear Creek also argues that we should look to federal labor

law to determine the meaning of Oregon’s purportedly analogous state laws. Bear Creek maintains that Oregon’s “private

benefit” standard is substantially the same as the Fair Labor

Standards Act’s (“FLSA”) “primarily for the benefit or convenience of the employer” standard. See 29 U.S.C. § 203(m); 29

C.F.R. § 531.3(d).2 This argument fails for two reasons. 

First, the wording of the two standards is facially different.

Under Oregon’s “private benefit” standard, the focus of the

inquiry is the employee’s benefit. Or. Rev. Stat. § 653.035;

Or. Admin. R. 839-020-0025. A court must determine

whether housing was provided as a “private benefit” to the

2

29 C.F.R. § 531.3(d) states that “[t]he cost of furnishing ‘facilities’

found by the Administrator to be primarily for the benefit or convenience

of the employer will not be recognized as reasonable and may not therefore be included in computing wages.” 

BOBADILLA-GERMAN v. BEAR CREEK 4995
employee. Id. Under the FLSA, however, the focus is on the

employer’s benefit. 29 C.F.R. § 531.3(d)(1); Soler v. G. & U.,

Inc., 833 F.2d 1104, 1109-10 (2d Cir. 1987). A court would

have to determine whether housing was provided “primarily

for the benefit or convenience of the employer.” Id. These are

different inquiries. 

Second, Oregon has adopted a rule—Oregon Administrative Rule 839-020-0025(7)—specifically defining when housing is conferred as a “private benefit.” We need not examine

federal labor law, as Bear Creek would have us do, in order

to give meaning to the term “private benefit.” Oregon’s

administrative rules have done that already.

[5] The district court erred in its application of Oregon’s

minimum wage laws. Accordingly, we reverse its decision as

to this issue and hold that Bear Creek violated Oregon law

when it credited on-site housing costs toward its employees’

minimum wage. 

B

Bear Creek, on cross-appeal, challenges the district court’s

conclusion that it paid some of its workers a day later than it

should have. We affirm the district court’s decision on this

issue. 

[6] Under Oregon Revised Statutes § 652.145:

[I]f an employee has worked for an employer as a

seasonal farmworker, whenever the employment terminates, all wages earned and unpaid become due

and payable immediately. However, if the employee

quits without giving the employer at least 48 hours’

notice, wages earned and unpaid are due and payable

within 48 hours after the employee has quit, or at the

next regularly scheduled payday after the employee

has quit, whichever event first occurs.

4996 BOBADILLA-GERMAN v. BEAR CREEK
Or. Rev. Stat. § 652.145 (emphasis added).3

 The administrative rule implementing this statute provides:

(1) When a seasonal farmworker or seasonal reforestation worker terminates employment because of discharge or mutual consent, all wages earned and

unpaid become due and payable on the last day the

employee works.

(2) When a seasonal farmworker or seasonal reforestation worker quits employment and gives the

employer at least 48 hours notice of intent to quit, all

wages earned and unpaid become due and payable

on the last day the employee works. 

(3) When a seasonal farmworker or seasonal reforestation worker quits employment and fails to give the

employer at least 48 hours notice, all wages earned

and unpaid become due and payable within 48 hours

after the employee quits or on the next regularly

scheduled payday, whichever comes first.

Or. Admin. R. 839-001-0440 (emphasis added). In other

words, unless the worker quits and fails to give at least 48

hours’ notice, the phrase “whenever the employment terminates,” Oregon Revised Statutes § 652.145, is taken to mean

“on the last day the employee works,” Oregon Administrative

Rule 839-001-0440. 

The district court concluded Bear Creek violated this rule

because the company terminated and paid its workers the day

after their last workday. The district court noted that payment

on the last workday might be “burdensome and costly to

accomplish, but it is possible.” 

3The parties do not dispute that the plaintiffs were “seasonal farmworkers” within the meaning of Oregon Revised Statutes § 652.145. 

BOBADILLA-GERMAN v. BEAR CREEK 4997
Bear Creek acknowledges that it paid its workers one day

after their last workday. But it claims that the district court

erred by applying the rule because the Bureau of Labor and

Industries exceeded its authority when it promulgated Oregon

Administrative Rule 839-001-0440(1). Bear Creek argues that

the rule’s requirement that wages be paid “on the last day the

employee works” is patently inconsistent with the statutory

requirement that wages be paid “whenever the employment

terminates.” Bear Creek’s argument is unpersuasive.

With Oregon Administrative Rule 839-001-0440(1), the

Bureau made clear that it interpreted the phrase “whenever

the employment terminates” to mean “on the last day the

employee works.” Generally speaking, Oregon courts defer to

agency rules. Terway v. Real Estate Agency, 196 P.3d 1022,

1027 (Or. Ct. App. 2008). The level of deference, though,

depends on the “nature of the statutory language in dispute.”

Id. The Oregon Supreme Court has identified three categories

of statutory text, each requiring a different level of appellate

court deference:

The first category consists of “exact terms,” which

require no interpretation because they impart precise

meanings. The second category consists of “inexact

terms,” which embody a complete expression of legislative meaning but are subject to varying interpretations, and the task of the agency and of a reviewing

court is to determine what the legislature intended by

the use of those words. The third category consists

of “delegative terms,” which express “noncompleted” legislation in that the agency is given

authority to refine and execute the generallyexpressed legislative policy. The delegation of

responsibility for policy refinement under a statute

that contains delegative terms is for the agency and

not part of the review function of the court. Rather,

the role of a reviewing court is to ascertain whether

the agency’s decision is within the range of discre4998 BOBADILLA-GERMAN v. BEAR CREEK
tion allowed by the more general policy of the statute.

Id. at 1027 (citations omitted) (discussing and citing Springfield Educ. Ass’n v. Springfield Sch. Dist. No. 19, 621 P.2d

547, 552-55 (Or. 1980).

Here, the statutory term “whenever the employment terminates” is not an exact term—i.e., it does not have a facially

precise meaning. See id. Instead, it is either an inexact or delegative term. See id. Courts afford agencies less deference in

their interpretation of inexact terms than delegative terms. See

id. When an agency interprets an inexact term, the agency

interpretation is reviewed “for errors of law and requires [the

court] to discern the policy underlying the use of those

words.” Id. at 1028. The “court reviews to decide, whether the

agency’s decision is within the legislative policy.” Id. (internal quotation marks omitted). 

[7] Oregon courts have addressed the purpose of similar

wage and hour statutes on several occasions. See, e.g., Belknap v. U.S. Bank Nat’l Ass’n, 234 P.3d 1041 (Or. Ct. App.

2010); Wyatt v. Body Imaging, P.C., 989 P.2d 36 (Or. Ct.

App. 1999) (en banc); Pope v. Judicial Dep’t, 721 P.2d 462

(Or. Ct. App. 1986); Lamy v. Jack Jarvis & Co., 574 P.2d

1107 (Or. 1978). They have observed, for instance:

[T]he “central purpose [of the wage and hour statutes

is] that of assuring that one who works in a master

and servant relationship, usually with a disparity of

economic power existing between himself and his

superior, shall be assured of prompt payment for his

labors when the relationship is terminated.”

Belknap, 234 P.3d at 1048 (quoting Lamy, 574 P.2d at 1111).

Similarly, Oregon courts have concluded that the policy of the

statutes is “to aid an employee in the prompt collection of

compensation due and to discourage an employer from using

BOBADILLA-GERMAN v. BEAR CREEK 4999
its economic superiority as a lever to dissuade an employee

from promptly collecting his agreed compensation.” Stout v.

Citicorp Indus. Credit, Inc., 796 P.2d 373, 375 (Or. Ct. App.

1990) (citing State ex rel. Nilsen v. Or. State Motor Ass’n,

432 P.2d 512, 515 (Or. 1967)).

[8] Here, the Bureau’s rule requiring employers to pay seasonal farmworkers “on the last day the employee works,”

Oregon Administrative Rule 839-001-0440(1), advances the

policy of ensuring “prompt payment for [the seasonal farmworkers’] labors when the relationship is terminated.” Belknap, 234 P.3d at 1048. Thus, the Bureau’s interpretation of

Oregon Revised Statutes § 652.145—which takes the statutory phrase “whenever the employment terminates” to mean

“on the last day the employe works”—is a valid interpretation

of an inexact term (as well as a delegative term, under the less

stringent standard).

Bear Creek quibbles with the practical implications of the

rule, but, as the district court stated, “The wisdom of the regulation is a judgment to be made by Oregon’s Legislature and

the Commissioner of [the Bureau],” not a reviewing court.

[9] We affirm the district court’s conclusion that Bear

Creek violated Oregon Administrative Rule 839-001-0440(1)

when it paid some of its workers the day after their last workday.

IV

For the reasons above, we reverse the district court’s determination that Bear Creek lawfully credited on-site housing

costs toward its workers’ minimum wage. We affirm its determination that Bear Creek violated Oregon law by paying

some of its workers the day after their last workday. We need

not and do not reach any other issues urged by the parties.

AFFIRMED in part; REVERSED in part; costs on

appeal awarded to Plaintiffs-Appellants/Cross-Appellees.

5000 BOBADILLA-GERMAN v. BEAR CREEK