FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

July 3, 2007

THOMAS K. KAHN

CLERK

The Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting *

by designation.

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

___________________________

No. 06-11370

___________________________

D.C. Docket No. 02-23662-CV-AMS

ARMANDO SARIOL,

Plaintiff-Appellant,

versus

FLORIDA CRYSTALS CORPORATION,

FLORIDA CRYSTALS FOOD CORP.,

SUGAR FARMS CO-OP,

Defendants-Appellees.

___________________________

Appeal from the United States District Court

for the Southern District of Florida

____________________________

(July 3, 2007)

Before TJOFLAT, FAY and SILER, Circuit Judges. *
 2

SILER, Circuit Judge: 

Armando Sariol appeals from a grant of summary judgment in favor of Florida

Crystals Corporation, Florida Crystals Food Corporation, and Sugar Farms Co-op

(collectively “Defendants”) on his Fair Labor Standards Act (“FLSA”) claim for

overtime compensation, 29 U.S.C. § 207. Themagistrate judge, sitting by the parties’

consent, entered summary judgment based on the FLSA’s agriculture exemption, 29

U.S.C. § 213(a)(6), finding that Sariol, who operated a service truck delivering fuel

on Sugar Farms Co-op’s sugar cane and rice fields, was involved in a form of

secondary agriculture. We AFFIRM.

BACKGROUND

Sugar Farms Co-op is organized as an agricultural cooperative association

under Florida law. It engages in farming operations, including the planting and

cultivation of sugar cane and rice, but does not undertake any marketing, processing,

or milling of its agricultural products. The land making up the farm is owned by a

number of different entities that pay the cooperative to carry on the farming

operations. Sugar-Farms Co-op employs between 220 and 300 people, and uses

independent contractors to supplement the work of its employees. Overall, the

contractors perform only a small fraction of the agricultural work as compared to the

regular employees. 
 3

Sariol worked directly for Sugar Farms Co-op, delivering fuel for farm

machinery and performing maintenance and repair services on farm equipment.

Florida Crystals Corporation and Florida Crystals Food Corporation were alleged to

be joint employers of Sariol. As part of his work for Sugar Farms Co-op, Sariol

delivered fuel to machinery owned and operated by independent contractors who

provided services such as planting, fertilizing, herbiciding, and harvesting during

peak times in the growing season. Sugar Farms Co-op purchased all the fuel used on

the farm and furnished contractors with fuel as part of their compensation. Sariol

worked on the farm itself and did not provide any off-site services. All of his duties,

whether provided to fellow employees or independent contractors, were part of the

operations at Sugar Farms Co-op.

In 2002, Sariol filed this action against the Defendants, alleging violations of

the FLSA for missed overtime pay. The Defendants each filed separate motions for

summary judgment claiming that the FLSA’s agriculture exemption precluded Sariol

from receiving overtime pay. The magistrate judge agreed and granted summary

judgment in favor of the Defendants on this ground. 

DISCUSSION

We review a grant of summary judgment de novo, applying the same legal

standards as the court below, and viewing all facts and reasonable inferences drawn
 4

therefrom in the light most favorable to the non-moving party. Johnson v. Booker T.

Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

Under the FLSA’s overtime wage provision, covered employees must be paid

at least one and one-half times the regular rate at which they are employed for hours

worked in excess of forty hours. 29 U.S.C. § 207(a)(2). This provision does not

cover all employees, however, as the FLSA expressly exempts those workers

“employed in agriculture.” 29 U.S.C. § 213(a)(6). The FLSA, in turn, defines

“agriculture” to include

farming in all its branches and among other things includes the

cultivation and tillage of the soil, dairying, the production, cultivation,

growing, and harvesting of any agricultural or horticultural commodities

. . . and any practices (including forestry or lumbering operations)

performed by a farmer or on a farm as incident to or in conjunction with

such farming operations, including preparation for market, delivery to

storage or to market or to carriers for transportation to market.

29 U.S.C. § 203(f). 

The United States Supreme Court has construed this statutory definition as

providing for two categories of exempt agricultural practices. See Farmers Reservoir

& Irrigation Co. v. McComb, 337 U.S. 755, 762-63 (1949). The first half of the

definition covers what the Court referred to as “primary” agriculture, which includes

specific activities like cultivation and tillage of the soil, dairying, and harvesting. Id.

at 762. The latter half of the definition, according to the Court, has a “broader”
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted 1

as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close

of business on September 30, 1981.

 5

meaning that “includes any practices, whether or not themselves farming practices,

which are performed either by a farmer on a farm, incidentally to or in conjunction

with ‘such’ farming operations.” Id. at 762-63. Later courts have characterized this

distinction as one between “primary agriculture” and “secondary agriculture.” See

Marshall v. Gulf & W. Indus., Inc., 552 F.2d 124, 126 (11th Cir. 1977).

We agree with the district court that Sariol’s job duties were a form of

secondary agriculture. Numerous courts have found similar activities to come within

the agriculture exemption. For instance, the Supreme Court has held that employees

who transported workers and supplies to an employer’s sugar cane fields were

engaged in agriculture, and thus covered by the exemption, as were those who

repaired and serviced equipment necessary to the farming operations. Maneja v.

Waialua Agr. Co., 349 U.S. 254, 260-64 (1955). Flying a crop-dusting airplane,

cooking for field workers, or even clerical work can be considered agriculture for

purposes of the exemption if done by a farmer or on a farm and incidentally or in

conjunction with such farming operations. See Brennan v. Sugar Cane Growers

Coop. of Fla., 486 F.2d 1006, 1010-11 (5th Cir. 1973); Hodson v. Ewing, 451 F.2d

526, 529 (5th Cir. 1971); Boyls v. Wertz, 352 F.2d 63, 63 (5th Cir. 1965). 

1
Some of the harvesting work was performed by independent contractors from local sugar

2

cane millers who then transported the cane to the mill. In Wirtz v. Osceola Farms Co., 372 F.2d 584,

589 (5th Cir. 1967), we held that the hauling of raw cane to a mill was incidental to milling, not

farming, taking it outside the agriculture exemption. Here, however, Sariol’s delivery of fuel to the

contract harvesters is incidental to the primary agricultural activity of “harvesting,” see 29 U.S.C.

§ 203(f), qualifying his work as an exempt secondary activity. Wirtz itself recognized this distinction

in holding that other drivers who transported laborers and supplies for purposes of the harvesting

were exempt. Wirtz, 372 F.2d at 589. 

 6

Delivering fuel to farm machinery and maintaining equipment are, as the

district court concluded, not only incidental to Sugar Farms Co-op’s operations, but

are absolutely necessary. Without these services, which were provided both to the

Sugar Farms Co-op employees and itsindependent contractors, the farm would grind

to a halt. As a result, Sariol’s activities clearly qualify as a form of secondary

agriculture.2

Nevertheless, there are limits to the breadth of the secondary agriculture

exemption. It is clear from the statutory definition itself that such work must be

performed either by a farmer or on a farm, and that it must be related to the operations

of the very farm on which the employee works. In Mitchell v. Huntsville Wholesale

Nurseries, Inc., 267 F.2d 286, 290 (5th Cir. 1959), for example, the employer

qualified as a farmer because it owned and operated a nursery that grew, cultivated,

and sold its own products. However, the nursery could not claim the exemption for

employees who spent their time processing nursery stock received from other

farms. Id. To be eligible for the exemption, “the practices in question must relate to
Although Sariol spent the majority of his time delivering fuel to and servicing Sugar Farms

3

Co-op’s equipment, both parties agree that any time spent during the workweek on nonexempt

activities would vitiate the exemption for the entire week. See Skipper v. Superior Dairies, Inc., 512

F.2d 409, 411 (5th Cir. 1979).

 7

the farmer’s own farming operations and not to the farming operations of others.” Id.

Otherwise, the court reasoned, the practices would be “incidental to, orin conjunction

with, the farming operation of the other farmers and not incidental to, or in

conjunction with, farming operation of the farmers on whose premises the processing

is done.” Id. Seizing upon this language, Sariol argues first that the portion of his

time spent delivering fuel to independent contractors is related to the “farming

operations of others” and therefore not exempt. Second, and alternatively, he argues 3

that cooperative associations like Sugar Farms Co-op are barred from claiming the

agricultural exemption. Neither contention has merit.

For Sariol’s first argument to succeed, we would have to agree that independent

contractors constitute their own separate “farming operations.” Taking a snippet of

the Court’s language in Farmers Reservoir, he argues that the independent

contractors are “separately organized as an independent productive activity.”

Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 761 (1949). He cites

the fact that the independent contractors are responsible for their own workforce and

equipment (except for fuel, of course). This language from Farmers Reservoir,
 8

however, deals only with the problem of distinguishing agricultural from

nonagricultural activities. There is no such problem here. As we noted above,

Sariol’s job duties clearly qualify as secondary agriculture. Farmers Reservoir

simply does not speak to the issue of whether the work of independent contractors can

be considered separate farming operations. 

Two sources of authority support the commonsense view that independent

contractors do not make up their own separate operations. First, the Department of

Labor’s regulation explaining the agriculture exemption reveals that Congress

intended independent contractors to be treated like other agricultural employees:

The legislative history makes it plain that this language was particularly

included to make certain that independent contractors such as threshers

of wheat, who travel around from farm to farm to assist farmers in what

is recognized as a purely agricultural task and also to assist a farmer in

getting his agricultural goods to market in their raw or natural state,

should be included within the definition of agricultural employees.

29 C.F.R. § 780.128 (emphasis added) (quoting Bowie v. Gonzalez, 117 F.2d 11, 18

(1st Cir. 1941)). Because the agricultural activities of independent contractors, like

those of employees, are exempt, it would be senseless to draw a distinction between

secondary agricultural services provided to one but not the other, as Sariol asks us to

do. That contractors are to be treated like employees also demonstrates that, under
Central to our holding is that Sariol spent all of his time on the Sugar Farms Co-op 4

operation, satisfying the separate requirement under the exemption that secondary agricultural

activities be performed “by a farmer or on a farm.” 29 U.S.C. § 203(f). Sariol’s arguments from

cases where the exemption was denied for employees who worked off the farm are therefore

inapposite. 

 9

Congress’s understanding, contractors hired by farms do not carry on their own

separate farming operations. 

Second, in deciding whether a subsidiary or its parent company would be

considered a “farmer” for purposes of the exemption, we placed great weight on the

subsidiary’s “independence in decision-making.” Marshall v. Gulf &W. Indus., Inc.,

552 F.2d 124, 126 (11th Cir. 1977). In Marshall, we held that the subsidiary, because

it “owned all crops planted, grown, and harvested,” therefore had “control over the

farming operations.” Id. This independence and control meant that only the

subsidiary, not the parent company, could claim the exemption. Id. By contrast,

independent contractors do not control the farming operations. They perform discrete

functions at the behest and control of the farm operator, here Sugar Farms Co-op.

Therefore, the work of the contractors cannot be viewed as separate operations, and

the time Sariol spent delivering fuel to the contractors was covered by the exemption.4

Sariol’s second argument is that Sugar Farms Co-op cannot qualify as a

“farmer” under the exemption definition because it is a cooperative association.

Sariol relies solely on the Farmers Reservoir decision, in which the Court held that
 10

the employees of an irrigation cooperative were not engaged in the practice of

agriculture, even though the cooperative had been created and was owned by farmers.

Farmers Reservoir, 337 U.S. at 768-69. The Court reasoned:

The controlling fact is that the company has been set up by the farmers

as an independent entity to operate an integrated, unitary water supply

system. The function of supplying water has thus been divorced by the

farmers from the farming operation and set up as a separate and selfcontained activity in which the farmers are forbidden, by the company’s

by-laws, to interfere. Those employed in that activity are employed by

the company, not by the farmers who own the company.

Id. at 768. Looking to the legislative history of the exemption, the Court also stated

that “[t]he debate in both Houses shows a clear awareness that the employees of

farmers cooperative associations would not be exempted as employees of farmers.”

Id. at 769 n.19. 

Sariol interprets this case as precluding all cooperative associations from

claiming the exemption. However, it is clear that Farmers Reservoir stands for the

more limited proposition that employees of agricultural cooperatives are employed

by the cooperative and not by the farmers who create and own the cooperative. To

determine whether the exemption applies, courts must look to the activities of the

cooperative; the mere fact that it is owned by farmers will not suffice. In other words,

it is not the form of the organization, but its activities. In Farmers Reservoir, the
 11

Court found that the irrigation cooperative was not engaged in agriculture. Here,

Sugar Farms Co-op clearly is.

Sariol also directs our attention to the Department of Labor’s regulations,

which note that “employees of a farmers’ cooperative association are not generally

engaged in any practices performed ‘by a farmer’ within the meaning of section 3(f).”

29 C.F.R. § 780.133(a) (citing Farmers Reservoir). This regulation merely restates

the rule from Farmers Reservoir. In fact, the next subsection clarifies that

[i]t is possible that some farmers’ cooperative associations may

themselves engage in actual farming operations to an extent and under

circumstances sufficient to qualify as a “farmer.” In such case, any of

their employees who perform practices as an incident to or in

conjunction with such farming operations are employed in “agriculture.”

29 C.F.R. § 780.133(b).

Sugar Farms Co-op, which without doubt engages in “actual farming

operations,” is just the type of cooperative association envisioned by subsection (b).

There is no merit to Sariol’s contention that all cooperative associations are ineligible

for the exemption, and Sugar Farms Co-op is clearly one cooperative that is eligible.

AFFIRMED.