1 29 U.S.C. §§ 201–219.

2 Id. §§ 1801–1872. United States Court of Appeals,

Fifth Circuit.

No. 91–1426.

Gregorio R. SALINAS, et al., Plaintiffs,

v.

Jimmy RODRIGUEZ, Jr., et al., Defendants.

Gregorio R. SALINAS, Gregorio G. Salinas, and Jesus Chavez, Individually and on Behalf of all

others similarly situated, Plaintiffs–Appellants,

v.

GOODPASTURE, INC., PST, et al., Defendants–Appellees.

June 22, 1992.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, and WILLIAMS and DUHÉ, Circuit Judges.

PER CURIAM:

This case requires the Court to decide whether, under the Fair Labors Standard Act (FLSA) 1

and the Migrant and Seasonal Agricultural Worker Protecti on Act (AWPA), 2 worker-days of labor

used by one joint employer should be imputed to another joint employer for purposes of imposing

liabilit y despite the small-business exemption. We hold t hat imputation would be contrary to the

language of the statute and therefore affirm the judgment for the Defendants. We vacate and remand

on the question of attorneys' fees and costs, however.

I.

No facts are disputed before this Court. The Plaintiffs are migrant agricultural workers whom

Defend ant Jimmy Rodriguez recruited to work as a crew. The other Defendants, all farmers,

contacted Mr. Rodriguez to have his crew hoe cotton on their farms. For each job, the farmer andMr. Rodriguez were joint employers. The farmers issued the paychecks but did not pay minimum

wage, keep records, or issue pay statements.

The Plaint iffs filed suit under the FLSA and the AWPA. The district judge decided all of the

issues except whether each of the farmers sati sfied t he 500 worker-day exemption for small

businesses and small farmers. The jury decided that all of the Defendants, except Mr. Rodriguez and

four of the farmers, are exempt. The district court awarded damages to the class Plaintiffs under the

AWPA and to the named Plaintiffs under the FLSA, which does not allow for class actions.

The district judge assigned the task of figuring attorneys' fees and costs to a magistrate judge,

who greatly reduced Plaint iffs' fees request after performing a careful analysis. The district judge

adopted the recommendation of the magistrate as to costs, but he further reduced the award of

attorneys' fees. Thus, Plaintiffs' request for $114,000 was reduced by the magistrate to $24,000, and

further reduced by the district judge to $1600. The Plaintiffs appeal.

II.

The FLSA does "not apply with respect to

... any employee employed in agriculture

... if such

employee is employed by an employer who did not, during any calendar quarter during the preceding

calendar year, use more than five hundred man-days of agricultural labor." 29 U.S.C. § 213(a)(6)(A).

The AWPA incorporates the same exemption. I d. § 1803(a)(2). The parties have agreed that most

of t he individual farmers by themselves would be exempt under this provision. The Plaintiffs,

however, argue that because each farmer was a joint employer with Mr. Rodriguez, and because Mr.

Rodriguez is not exempt under this provision, the farmer must be liable as well. The district court

disagreed. We review the decision of the district court de no vo because it involves an issue of

statutory construction, which is a question of law. E .g., Brock v. Mr. W. Fireworks, Inc., 814 F.2d

1042, 1044–45 (5th Cir.), cert. denied, 484 U.S. 924, 108 S.Ct. 286, 98 L.Ed.2d 246 (1987).3 The Department of Labor usually provides an introductory section to each interpretive

bulletin which expresses the purpose of the particular interpretive bulletin. E.g. 29 C.F.R. § 791.1

provides in part that "[t]hese interpretations contain the construction of the law which the

administrator believes to be correct and which will guide him ... unless and until he is otherwise The Pl aint iffs rely heavily on the interpretive bulletins promulgated by the Department of

Labor. One interpretive bulletin provides:

A farmer whose crops are harvested by an independent contractor is considered to be

a joint employer with the contractor who supplies the harvest hands if t he farmer has the

power to di rect, control or supervise the work, or to determine the pay rates or m ethod of

payment for the harvest hands. Each employer must include the contractor's employees in his

man-day count in determining whether his own man-day test is met. Each employer will be

considered responsible for comp liance with the minimum wage ... requirements of the Act

with respect to the employees who are jointly employed.

29 C.F.R. § 780.305(c) (1991) (citation omitted). Another interpretive bulletin states that

all of the employee's work for all of the joint employers during the workweek is considered

as one employment for purposes of the Act. In this event, all joint employers are responsible,

both individually and joint ly, for compliance with all of the applicable provisions of the act

[ sic ].

Id. § 791.2(a).

In general, courts must give c o nsiderable respect to "regulations promulgated by the

governmental body responsible for interpreting or administering" the statute in question. E .g., Ford

Motor Credit Co. v. Cenance, 452 U.S. 155, 158 n. 3, 101 S.Ct. 2239, 2241 n. 3, 68 L.Ed.2d 744

(1981). While regulations carry the force of law, "[b]ulletins and interpretive rules of agency

administrator while persuasive, are not controlling. We must resolve any conflict ... to give effect to

the regulation" and statute. M edellin v. Bustos, 854 F.2d 795, 799 (5th Cir.1988). When the

regulations are contrary to the wording of the statute itself, however, this Court must follow the plain

statutory language and not the regulations. I d.; Bureau of Alcohol, Tobacco & Firearms v. Federal

Labor Relations Auth., 464 U.S. 89, 97–98, 104 S.Ct. 439, 445, 78 L.Ed.2d 195 (1983). Perforce

interpretive bulletins have no force of law and cannot provide the basis for a result contrary to either

statute or regulation. 3 In this case, we conclude that the interpretive bulletins, when fully construed,directed by authoritative decisions of the courts...." Accord 29 C.F.R. §§ 780.0, 780.5–780.9. are consistent with both the regulations and the statutes, and do not support the Plaintiffs' position

on appeal.

The language of the sta t ut e keys coverage under the FLSA and AWPA to an employee in

relation to an employer. W irtz v. Hebert, 368 F.2d 139 (5th Cir.1966). As the statute is worded, an

employee is covered in relation to employment by an employer who is not exempt. The employee

is not covered in relation to employment by an employer who is exempt. Thus, Plaintiffs are covered

by the Acts insofar as their employment by Mr. Rodriguez is concerned, whether Mr. Rodriguez is

an independent contractor or not. 29 C.F.R. § 780.331(d).

One FLSA interpretive bulletin provides that "an employer should not be held responsible for

an employee's action in seeking, independently, additional part-time employment. But, where two

or more employers stand in the position of "joint employers' and permit or require the employee to

work more than the number of hours specified section 7(a), both the letter and the spirit of the statute

require payment of overtime." 29 C.F.R. § 791.2, n. 5. [emphasis ours]. E .g., see Wirtz. The small

farmers herein neither permitted nor required Rodriguez's agricultural workers to seek additional

employment. In fact, they would have been powerless to stop the workers fro m so do ing. Thus,

Plaintiffs cannot recover from individual farmers.

Another interpretive bulletin which addresses the effect of joint employ ment provides in

relevant part that "[i]n a joint employment situation, the man-days of agricultural labor rendered are

counted toward the man-days of such labor of each employer." 29 C.F.R. § 780.331(d). The section

also provides that "employees are considered jointly employed by [the labor crew leader] and the

farmer who is using their labor." I d. The clear import of the words "rendered" and "using their4 This conclusion accords with the result reached if the rationale of footnote 5 of section 791.2

is applied to section 780.305. It is similar to the logic employed in 29 C.F.R. § 780.332(c) which

describes the allocation of man-days in the instance of neighboring farmers sharing labor hands:

"Since the Act defines man-day to mean any day during which an employee performs any

agricultural labor for not less than one hour there may be days on which these employees work for

both Farmer A and Farmer B for a man-day." The clear implication of this explanation is that

there must also be the possibility of days in which the laborer works a man-day for Farmer A or Farmer B, but not both. labor" is that the man-days imputable to the farmer ar e o nly t ho se for which he is the employer. 4

When the farmer is no longer "using [the agricultural worker's] labor," the farmer is not their joint

employer.

The result is a harmonious interpretation of the statutes, the regulations, and the interpretive

bulletins. "These exemptions, because of their relationship to one another, should be co nstrued

together insofar as possible for form a consistent whole." 29 C.F.R. § 780.9. Only those man-days

which an agricultural worker expen ds for a particular farmer are counted towards the farmer's

man-day exemption. If, after completing work for the farmer, the agricultural worker seeks other

work independent of that farmer, the additional man-days are not imputable to the first farmer. All

of t he additional man-days, however, are imputable to the labor contractor. In this manner, the

agricultural workers are protected under the Act s, t he small farmers are protected through the

exemption, and the labor contractor will invariably exceed the five-hundred man days exemption and

be responsible to the agricultural workers under the Acts. Furthermore, this is consistent with the

theme that flows through the interpretive bulletins that a person may perform exempt and non-exempt

work in the same work period. 29 C.F.R. §§ 780.11–780.12.

The policy enacted by the statutes is furthered by our holding. The statutes exempt small

businesses. Were we to adopt the Plaintiffs' argument, a small farming operation would

instantaneously become liable under federal statutes, and the complicated regulatory regimes created

thereunder, after hiring Mr. Rodriguez's crew to work for a morning. The statute does not require

such a result.5 N.D.Tex.R. 8.2(e). III.

The Plaintiffs also complain that the district court should have conducted an investigation,

or permitted Plaint iffs to conduct an investigation, into alleged juror misconduct. After the trial one

juror telephoned one of the Plaint iffs' attorney s and informed him that another juror, Anne Solomann,

told the jury that she was the best friend of the daughter of Mr. Rodriguez's attorney and that Ms.

Solomann knew of depositions in the case. By local rules, attorneys are not allowed to cont act

jurors, 5 and counsel moved to interview the jury. The court declined to conduct an interview or to

allow counsel to do so. We review this decision o nly for an abuse of discretion. U nited States v.

Sedigh, 658 F.2d 1010, 1014 (5th Cir. Unit A 1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71

L.Ed.2d 462 (1982).

On voir dire Ms. Solomann revealed in open court, "I do business with all the women in [the

Defendant's attorney's] family, and his daughter is one of my best friends." 15 R. 12. The district

judge pursued the matter, and he satisfied himself that she could serve as "a fair and impartial juror"

and that she could "base [her] decision solely upon the evidence presented in the case and nothing

else." Id. The lawyers for the Plaintiffs were present when Ms. Solomann disclosed her friendship

and business dealings, and Plaint iffs' counsel had the opportuni ty to pursue the issue on voir dire, but

they did not.

The duty of the trial court, when jury misconduct is alleged after the trial, "must be judged

on the peculiar facts and circumstances of each case." S edigh, 658 F.2d at 1014. Given the record

of voir dire in this case, we cannot find that the district court abused its discret io n in refusing to

investigate when counsel has raised no graver allegation than the one here.

IV.

T he Plaint iffs also challenge the district judge's reduction of their attorneys' fees recovery.6

Associated Builders & Contractors v. Orleans Parish Sch. Bd., 919 F.2d 374, 379 (5th

Cir.1990). The district judge gave no reasons for reducing the award below the amount recommended by the

magistrate. Although this Court reviews the district court's award of attorneys' fees only for an abuse

of discretion, 6 we cannot determine whether the district court abused its discretion if it does not give

reasons for its decision. McGow an v. King, Inc., 616 F.2d 745, 746 (5th Cir.1980). We therefore

va cat e t he award of attorneys' fees and remand to the district court for reconsideration and a

statement of reasons.

On remand, the district court should also reconsider its decision not to allow Plaint iffs to

recover for the fees of their expert witness. The court relied on 28 U.S.C. § 1920(6), which provides

only for compensation of court-appointed experts. We vacate that decision for reco nsideration in

light of 28 U.S.C. § 1920(3) and the Supreme Court decision in C rawford Fitting Co. v. J. T

.

Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) (allowing a party to recover

up to the statutory maximum for its own expert witness fees). The maximum amount recoverable

for witness fees is set by 28 U.S.C. § 1821.

V.

For the foregoing reasons, the judgment of the district court is AFFIRMED. The award of

attorneys' fees and costs is VACATED and REMANDED.