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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

GAINESVILLE DIVISION 

DELINOIR FANETTE, et al., 

Plaintiffs, 

 

v. CASE NO. 1:10cv136-MW/GRJ

STEVEN DAVIS FARMS, LLC and 

STEVEN M. DAVIS, 

Defendants. 

____________________________________/

ORDER GRANTING DOMESTIC FARMWORKER 

PLAINTIFFS= MOTION FOR PARTIAL SUMMARY JUDGMENT

This matter came before this Court on the motion of the 29 domestic farmworker 

Plaintiffs for partial summary judgment. ECF No. 131.1

 Plaintiffs seek summary judgment 

regarding five claims brought under the Migrant and Seasonal Agricultural Worker Protection 

Act, 29 U.S.C. ' 1801, et seq. (AAWPA@). In particular, the domestic farmworker Plaintiffs 

claim they are entitled to summary judgment with respect to the Defendants’ violations of the 

Act’s provisions relating to disclosure 29 U.S.C. § 1821(a), recordkeeping 29 U.S.C. § 

1821(d)(1), wage statements 29 U.S.C. § 1821(d)(2), housing certification 29 U.S.C. § 

 1

As used herein, the term “domestic farmworkers” refers to those Plaintiffs who were not 

employed pursuant to temporary visas issued under the Immigration and Nationality Act, 8 

U.S.C. § 1101(a)(15)(H)(ii)(A). The group is comprised of Plaintiffs Yves Augustin, Francillon 

Badio, Marie Marthe Beneche, Juslaine Cherelus, Dalestin Cherenfant, Sifort Contreker, Pierre 

Anes Darvilmar, Marie I. Desruisseau, St. Gelus Dufresne, Marie Yolene Exume, Delinoir 

Fanette, Marie Almonor Faustin, Devilma Florvil, Andre Jean-Baptiste, Zillianne Joly, Merancia 

oseph, Rosie Joseph Anite Labrousse, Clervis Louis, Edel Joseph Mayard, Andrelise Mezilus, 

Decion Nelson, Addly Petitfrere, Inocio Andre Simeon, Pierre Stimable, Iclercia St. Juste, 

Mimose Vincent, Epfanie Saintelus Vital and Dukens Zephir.

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1823(b)(1) and wage payment 29 U.S.C. § 1822(a).2

 

The domestic farmworkers’ motion was supported by a statement of material facts not in 

dispute, filed in accordance with Local Rule 56.1(A). ECF No. 131-1. Defendants Steven M. 

Davis and Steven Davis Farms, LLC filed a brief in opposition to the domestic farmworkers’ 

motion, ECF No. 153, but did not file a separate statement of the material facts with respect to 

which they claimed there was a genuine dispute requiring a trial.3

As set out below, Defendants readily acknowledge they did not comply with the AWPA=s 

disclosure, recordkeeping, wage statement, housing and wage payment provisions, but contend 

they are not liable for these violations of the Act because they did not Aemploy@ the domestic 

farmworker Plaintiffs within the meaning of the AWPA. 

Factual Summary

Defendant Steven Davis operates a farm in Alachua County and has over the years grown 

a number of crops, including cabbage, collards, mustard greens, turnip greens, green beans, 

squash, zucchini, peas, cantaloupe and watermelons. At least a portion of the produce grown on 

Davis’ farm is sold interstate. 

In early 2008, Davis purchased a packing shed in Lacrosse, Alachua County, which he 

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The domestic farmworker Plaintiffs also presented claims under several other provisions 

of the AWPA and sought unpaid minimum wages under the Fair Labor Standards Act, 29 U.S.C. 

§ 206(a). At the June 20, 2013, hearing in this matter, counsel for the domestic farmworkers 

advised this Court that if summary judgment was granted with regard to the five AWPA 

provisions, these Plaintiffs intended to voluntarily dismiss their remaining claims.

3

Because Defendants failed to file the separate statement required by local rule, all 

material facts set out in the domestic workers’ statement, ECF No. 131-1, are deemed admitted. 

Local Rule 56.1(A). Furthermore, this Court finds the record discloses no genuine issues of 

material fact in dispute regarding the claims of the domestic farmworker Plaintiffs under the 

disclosure, recordkeeping, wage statement, housing certification and wage payment provisions of 

the AWPA.

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used to grade and pack the crops grown on his farm. At that time, Steven Davis Farms, LLC 

was created to operate the packing shed, with Davis as the principal owner and chief executive 

officer. Even though it was intended that the farm, with Davis as sole proprietor, and the 

packing shed, operated by Steven Davis Farms, LLC, would operate separately, the financial 

accounts of the two are substantially intertwined. Among other things, the operating expenses 

for the farm, including the costs of harvesting the crops, are paid by Steven Davis Farms, LLC. 

The principal crops hand-harvested on Davis= operations are peas and green beans. In 

recent years, most of the hand-harvest work has involved peas. Substantial numbers of workers 

are needed to harvest the green bean and pea crops, beginning in May and June. Because Davis 

is unable to locate sufficient local labor, he relies on migrant labor to pick the green beans and 

peas produced on his farm. Prior to 2007, Davis relied on farm labor contractor Eugene Regis to 

recruit and furnish harvest labor to pick Davis= green beans and peas. Beginning in 2007, 

responsibility for recruiting hand-harvest labor for Davis= farm was assumed by Cabioch 

Bontemps, Regis’ stepson. Bontemps was not registered with federal or state authorities as a 

farm labor contractor. 

Bontemps recruited most of the harvest workers from the Miami area. Many of the 

Miami-based workers returned to work at the Davis farm year after year. The domestic worker 

Plaintiffs were among the Miami-based workers Bontemps recruited and furnished to the Davis 

farm for work in the following harvest seasons between 2007 and 2010. A detailed breakdown 

of the domestic farmworker Plaintiffs and the harvest seasons worked by each is attached as an 

addendum to this order.4

 4

 Defendants assert that certain of the domestic farmworker Plaintiffs did not work at 

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 Neither the domestic worker Plaintiffs nor any of the other members of Bontemps’ crew 

were provided with a written statement of the job terms at the time of their recruitment. 

Since at least 2008, Cabioch Bontemps has worked exclusively for Steven Davis on a 

year-round basis. Bontemps considers himself a manager for Davis. Besides recruiting harvest 

labor, Bontemps has worked for Davis as a salesman, forklift operator and security guard. 

Bontemps has assisted Davis in running his agricultural business, spraying the crops with 

chemicals and pesticides, delivering the produce to buyers and markets in central and north 

Florida and purchasing parts for Davis= farm equipment. In recent years, Bontemps’ principal 

job has been assisting Davis in selling his produce. For a time, Bontemps resided at Davis=

packing shed, with Davis paying the utility bills for Bontemps’ quarters. 

Bontemps was paid for his work by both Davis individually and by Steven Davis Farms, 

LLC. For his work furnishing harvest labor, Bontemps was paid based on the volume of produce 

his crew harvested. For furnishing workers to Davis= packing shed, Bontemps was paid $8.00 

per hour. In addition, Bontemps was paid $500 per week for his other duties, such as helping 

load trucks, delivering produce to Davis= customers and assisting with sales of the crop. For at 

least part of this period, Davis treated Bontemps as an employee for tax purposes, issuing 

Bontemps a W-2 form for his work furnishing and supervising workers. 

 

Davis’ farm during all of the seasons claimed. However, because Defendants failed to file a 

statement of material facts in dispute in accordance with Local Rule 56.1(A), see supra note 3,

the Plaintiffs’ work histories must be credited. Had this Court been required to reach the issue of 

the domestic farmworkers’ work histories, there appear to be genuine and material factual 

disputes regarding the work claimed to be performed on the Davis Farm by Plaintiffs Yves 

Augustin, Marie I. Desruisseau (dispute with respect to the 2008 and 2009 harvests), St. Gelus 

Dufresne (2007), Delinoir Fanette (2009 harvest), Andre Jean-Baptiste (2009 harvest), Zillianne 

Joly (2008 harvest), Merancia Joseph (2007), Anite Labrousse (2007 and 2009 harvests) and 

Dukens Zephyr.

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Davis made decisions regarding the planting, fertilizing and cultivation of his crops 

without any input from Bontemps. Davis provided all the capital for his farming operations and 

owned the equipment used to plant and cultivate the crops. 

Harvesting is a crucial and integral step in Davis= farming business. On a daily basis, 

Davis selected the particular fields to be harvested, and then instructed Bontemps of the location 

for the day’s picking and the type and volume of vegetables to be harvested. 

The harvest workers placed the peas or beans into sacks provided by Davis. Workers 

designated as Aluggers@ carried the filled sacks, weighed the contents and issued a token to the 

worker for each sack filled. Davis provided portable toilets, drinking water and hand washing 

facilities for use by harvest workers in Bontemps’ crew. 

One of the luggers for Bontemps= crew was Addly Pierre, also known by his nickname, 

AMichael.@ Pierre was a year-round employee of Davis, and was paid wages directly by Steven 

Davis Farms, including for work as a lugger with Bontemps’ crew. Pierre also supervised the 

work of the harvesting crew when Bontemps was away from the field delivering produce to 

buyers for Davis or loading pallets with a forklift in Davis’ packing shed. 

During the time green beans or peas were harvested, Davis visited three to five times per 

day. During these visits, Davis inspected the work being done by the individual pickers and if he 

discovered a worker picking beans of the wrong size or quality, Davis informed Bontemps so 

that Bontemps could speak directly to the picker. On occasion, Davis directly demonstrated to 

the workers which beans to pick and which not to pick, and sometimes picked alongside the 

members of Bontemps= crew, in part to boost the morale of the harvest workers. 

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Davis retained the authority to reassign members of Bontemps= harvesting crew to other 

jobs on the farm as needed. Among other things, Davis had the power to direct Bontemps to 

send part of his harvesting crew to the packing shed to grade vegetables. At the packing shed, 

members of Bontemps= crew worked grading green beans or butterbeans, and removing and 

discarding the spoiled or misshapen beans. When grading beans in Davis’ packing shed, the 

Plaintiffs and the other members of Bontemps’ crew performed the same job and worked 

alongside local residents who were paid directly by Davis or Steven Davis Farms. In the packing 

shed, Davis monitored the work of Bontemps’ crewmembers and supplied time cards used to 

record hours of work. 

Davis paid Bontemps for his labor contracting work in a lump sum. From this lump sum, 

Bontemps was expected to pay the members of his crew their wages, as well as any related 

employment taxes. No Social Security (FICA) or unemployment compensation taxes were paid 

on the earnings of workers in Bontemps’ crew. 

Bontemps was responsible for maintaining payroll records on the members of his crew, 

and he relied on Davis’ employee, Addly Pierre, to handle most of the recordkeeping. 

None of the payroll records for Cabioch Bontemps= crew from 2007 through 2010 are 

still in existence. Bontemps himself did not retain a copy of his records. Davis does not have 

the payroll records, in part, because Bontemps never provided him with a copy. 

Payroll records prepared by Bontemps and Addly Pierre were admittedly deficient. 

Among other things, there was no record of the number of hours worked by the members of the 

crew while picking green beans or peas on a piece-rate basis. In addition, the records 

occasionally listed the production of two workers under a single worker=s name. 

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The domestic farmworker Plaintiffs and the other members of Bontemps’ crew were paid 

wages in cash, with the money enclosed in an envelope, usually prepared by Addly Pierre, a fulltime employee of Davis. The pay envelopes listed only the workers= total earnings, and did not 

show the number of piece-work units earned. When workers picked together, a single pay 

envelope was used, rather than providing an envelope to each member of the picking team. The 

envelopes did not list the employer’s name and address or the date of payment, and did not show 

the number of hours worked on piece-rate tasks. 

Davis rented trailers from his father to accommodate the members of Bontemps’ crew. 

The members of Bontemps’ crew were charged $10 per week for the accommodations with the 

charge withheld from their weekly earnings. The facilities were not permitted nor approved for 

occupancy by migrant agricultural workers, nor had they been inspected by the local health 

department or any other governmental agency. Davis paid for repairs to the housing facilities. 

Summary Judgment

A party may be granted summary judgment when Athere is no genuine issue as to any 

material fact... and the moving party is entitled to judgment as a matter of law.@ Fed. R. Civ. P. 

56(c). Summary judgment Ashould be rendered if the pleadings, the discovery, disclosure 

materials on file, and any affidavits show there is no genuine issue as to any material fact.@ Fed. 

R. Civ. P. 56(c)(2); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party seeking 

summary judgment Aalways bears the initial responsibility of informing the district court of the 

basis for its motion, and identifying those portions of the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with affidavits, which it believes demonstrate 

the absence of a genuine issue of material fact.@ Celotex, 417 U.S. at 323 (citations omitted). If 

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the moving party meets this burden, the burden shifts to the nonmoving party to go beyond the 

pleadings and present specific evidence showing that there is a genuine issue of material fact, or 

that the moving party is not entitled to judgment as a matter of law. Id. at 324-36. This evidence 

must consist of more than mere conclusory allegations. Avirgan v. Hull, 932 F.2d 1572, 1577 

(11th Cir. 1991). 

AWPA AND FLSA COVERAGE OF STEVEN DAVIS FARMS, LLC

Employer status of the Defendants

The central disputed issue in this case is whether Davis Aemployed@ the farmworkers 

recruited and furnished by Bontemps within the meaning of the AWPA). The domestic 

farmworker Plaintiffs contend that Cabioch Bontemps was the full-time and admitted employee 

of Davis. They and the other members of Bontemps crew were, therefore, also Davis’ 

employees. Alternatively, the domestic farmworkers argue that even if Bontemps operated as an 

independent contractor in his dealings with the migrant crew, Davis nonetheless was a joint 

employer of the crewmembers and thereby responsible for the violations of the AWPA. 

Defenses presented after the close of discovery 

After the close of discovery and following the submission by the domestic farmworker 

Plaintiffs of their motion for summary judgment, Defendants sought to assert as an affirmative 

defense the so-called Asmall business@ exemption to the AWPA, 29 U.S.C. ' 1803(2). 29 C.F.R. 

' 500.30(b). Under this provision, growers are excused from the AWPA=s requirements if they 

fall within the Aman days@ exemption available to small farms under the Fair Labor Standards 

Act. 29 U.S.C. ' 1803(a)(2).5

 The FLSA Aman days@ exemption applies to agricultural 

 5

Under the FLSA, a man day is any day in which an employee performs an hour or more 

of agricultural labor. 29 U.S.C. ' 203(u); 29 C.F.R. ' 780.305(a).

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employers who did not use more than 500 man days of agricultural labor in any calendar quarter 

in preceding year. 29 U.S.C. ' 213(a)(6)(A). See also 29 C.F.R. ' 500.30(b) (incorporating the 

FLSA Aman days@ exemption into the AWPA).6

Defendants= argument fails for several reasons. First, under Federal Rule of Civil 

Procedure 8(c), a claim of exemption is an affirmative defense that must be specifically pleaded 

or it will be deemed waived. See, .e.g., Morrison v. Exec. Aircraft Refinishing, Inc., 434 F. Supp. 

2d 1314, 1318-19 (S.D. Fla. 2005).7 Because Defendants failed to specifically plead this 

exemption in their answer, ECF No. 57, Defendants have waived the affirmative defense. While 

this Court may, in its discretion, allow a late amendment to raise an affirmative defense, it will 

not do so here. It would be prejudicial to Plaintiffs to permit an amendment after discovery has 

closed. To allow such eleventh-hour amendments without a compelling showing of cause would 

encourage great mischief by parties seeking to try cases by ambush contrary to the letter and 

spirit of the discovery rules. 

Second, even if Defendants were allowed to raise the small business exemption at this 

late date, Defendants have failed to establish their entitlement to its benefits. Because this 

exemption is an affirmative defense, Defendants have the burden of establishing the exemption 

at trial, Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974), and also on summary 

judgment. See Roca v. Alphatech Aviation Servs., Inc., No. 1:12-cv-23955, 2013 WL 4436558, 

 6

Because the AWPA adopts by reference the FLSA=s man day exemption in 29 U.S.C. '

1803(a)(2), the jurisprudence relating to FLSA exemptions applies equally in the application of 

the AWPA=s small business exemption.

7

This Court rejects Defendants’ contention that the small business exemption in 29 

U.S.C. ' 1803(a)(2) is jurisdictional. It is an affirmative defense that must be pleaded and 

proven by an agricultural employer or farm labor contractor.

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at *4 (S.D. Fla. Aug. 20, 2013); Klem v. Cnty. of Santa Clara, 208 F.3d 1085, 1095 (9th Cir. 

2000) (finding in summary judgment motion, Athe burden is on the [employer] to demonstrate its 

entitlement to an exemption from the overtime provisions of the FLSA.@). 

In this case, the Defendants face a heightened burden of proof because of the remedial 

nature of the AWPA. It is not enough for Defendants to show they are exempt from the AWPA 

by a preponderance of the evidence; instead, it must demonstrate that it is plainly and 

unmistakably within the terms and spirit of the exemption. 

The Eleventh Circuit has emphasized that the AAWPA is a remedial statute and should be 

construed broadly to affect its humanitarian purpose.@ See Caro-Galvan v. Curtis Richardson, 

Inc., 993 F.2d 1500, 1505 (11th Cir. 1993). As a corollary, exemptions are disfavored, not given 

generous application, and are construed narrowly against employers asserting them. Auer v. 

Robbins, 519 U.S. 452, 462 (1997); Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)

(AWe have held that these exemptions are to be narrowly construed against the employers 

seeking to assert them and their application limited to those establishments plainly and 

unmistakably within their terms and spirit.@).

The Defendants have offered no evidence whatsoever regarding the man-days used 

during the relevant years. This is not surprising given the haphazard nature of the Defendants=

recordkeeping practices. Only fragmentary records were kept regarding the number of 

individuals furnished to the Defendants by Cabioch Bontemps. 

The Defendants suggest that, at a minimum, Defendant Steven Davis Farms, LLC is 

exempt from the Act during 2008, its initial year of operation. Ordinarily, a new entity would 

automatically be able to claim the small business exemption, because the fledgling employer had 

no employees whatsoever in the prior calendar year. However, this is only true if the new entity 

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is indeed an independent entity, rather than simply a continuation of a pre-existing employer. 

See, e.g., IUAIW v. Ruiz, No. B-83-270, 1991 WL 315133, at *5 (S.D. Tex. Jan. 22, 1991) 

(newly-incorporated company denied small business exemption under the AWPA because it was 

simply a restructured and continuing version of an earlier entity). 

Here, Steven Davis Farms, LLC never operated as a business independent of Steven 

Davis in his individual capacity. As Davis= bookkeeper noted, there was regular co-mingling of 

the assets of the LLC and individual accounts. The fact that Davis viewed his individual 

farming operations and the packing shed corporation as interchangeable was reflected in a June, 

2010, letter written to verify the employment of Plaintiff Devilma Florvil. In the letter, Davis’ 

office manager wrote that Florvil had worked for the prior eight years “doing field work” and 

that for “the last 2 years” had been employed by Steven Davis Farms, LLC. 

Employer status of the Defendants

The central disputed issue in this case is whether Davis Aemployed@ the farmworkers 

recruited and furnished by Bontemps within the meaning of the AWPA. The domestic 

farmworker Plaintiffs contend that Cabioch Bontemps was a full-time and admitted employee of 

Davis, they and the other members of the Bontemps crew were therefore also Davis’ employees. 

Alternatively, the domestic farmworkers argue that even if Bontemps operated as an independent 

contractor in his dealings with the migrant crew, Davis nonetheless was a joint employer of the 

crew members and thereby responsible for the violations of the AWPA. 

The AWPA was passed in 1982 to provide minimum protections for migrant and 

seasonal agricultural workers, including provisions demanding accurate recordkeeping and 

timely and complete wage payments. See, e.g., 29 U.S.C. '' 1821-1823,1831-32. In order Ato 

assure necessary protections for migrant and seasonal agricultural workers,@ 29 U.S.C. ' 1801, 

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the statute imposes obligations on “agricultural employers,” including farm and packing shed 

operators which “employ” migrant or seasonal farmworkers. 29 U.S.C. § 1802(2) and 29 C.F.R. 

§ 500.20(d). The AWPA expressly defines “employ” as synonymous with the term’s use in the 

Fair Labor Standards Act. 29 U.S.C. ' 1802(2)(5). Thus, an entity that employs agricultural 

workers under the FLSA necessarily employs the workers for the purposes of the AWPA and 

vice versa. Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996). 

The Eleventh Circuit has issued several decisions determining whether farmers 

“employed” the harvest workers furnished to them by farm labor contractors for purposes of the 

AWPA and the FLSA. Two of the more recent such rulings involved Haitian bean-picking 

crews, and in both instances the appeals court concluded that the farmer jointly employed the 

bean pickers along with the farm labor contractors. Antenor; Charles v. Burton, 169 F.3d 1322 

(11th Cir. 1999). This Court’s analysis is guided by the principles set out in these decisions.8

 

Under the FLSA and the AWPA, an entity Aemploys@ an individual if it Asuffers or 

permits@ the individual to work. Id.; 29 U.S.C. ' 203(g); 29 U.S.C. ' 1802(5). This broad 

definition of employment is critical to furthering the remedial purposes of the AWPA and the 

FLSA. Antenor, 88 F.3d at 933. 

In defining employment under the AWPA and the FLSA, Congress expressly rejected the 

common-law definition of employment, which is based on limiting concepts of control and 

supervision. Id. at 929, 933. Under the narrower common-law principles of master and 

 8

The Eleventh Circuit recently revisited the joint employment issue in Layton v. DHL 

Express (USA), Inc., 686 F.3d 1172 (11th Cir. 2012). Although it viewed the joint employment 

formulation set out in Charles as only persuasive, rather than precedential, for purposes of 

reviewing non-agricultural FLSA claims, the appeals court expressly declined to alter the 

Charles analytical framework for evaluating AWPA claims.

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servant, the focus is on the hiring party=s right to control the manner and means by which the 

work is done. Nationwide Mut. Ins. Co., v. Darden, 503 U.S. 318, 323 (1992). In contrast, under 

the broader FLSA definition, an entity Asuffers or permits@ an individual to work if, as a matter of 

economic reality, the worker is dependent on the entity. Martinez-Mendoza v. Champion Int’l 

Corp., 340 F.3d 1200, 1208 (11th Cir. 2003). This is a definition of Astriking breadth.@ 

Nationwide Mutual Ins. Co., 503 U.S. at 326; Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495 

(11th Cir. 1993) (describing the definition as Asweeping@). It has been called Athe broadest 

definition [of employee] that has ever been included in one act.@ Antenor v. D & S Farms, 88 

F.3d 925, 929 n.5 (11th Cir. 1996) (quoting U.S. v. Rossenwasser, 323 U.S. 360, 363 n.3 (1945)). 

Because the AWPA and the FLSA are remedial statutes, the definition of Aemploy@ should be 

construed broadly to effect Congress= statutory effect. Antenor, 88 F.3d at 933; Caro-Galvan, 

993 F.2d at 1505 (AAWPA is a remedial statute and should be construed broadly to effect its 

humanitarian purpose.@). 

Under the AWPA, growers who engage the services of farm labor contractors to furnish 

farmworkers are found to have “employed” the members of the labor contractors’ crews in two 

contexts: (1) when the farm labor contractor utilized is, as a matter of economic reality, an 

employee of the grower rather than an independent contractor; or (2) when the independent farm 

labor contractor is Anot completely disassociated with respect to the employment@ of workers, 

such that the labor contractor and the grower are deemed to jointly employ the workers. See 29 

C.F.R. ' 500.20(h)(4)-(5); 29 C.F.R. ' 791.2(a). Thus, if Davis employed farm labor contractor 

Bontemps, he also perforce employed the domestic worker Plaintiffs and the other members of 

Bontemps= crew. See 29 C.F.R. ' 500.20(h)(4) (AIf it is determined that the farm labor 

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contractor is an employee of the agricultural employer/association, the agricultural workers in the 

farm labor contractor=s crew who perform work for the agricultural employer/association are 

deemed to be employees of the agricultural employer/association and an inquiry into joint 

employment is not necessary or appropriate.@); Beliz v. W.H. McLeod & Sons Packing Co., 765 

F.2d 1317, 1327 (5th Cir. 1985) (AIf the alleged contractor were held to be an employee of the 

farmer, it would necessarily follow that the workers were in turn the farmer=s employees.@);

Castillo v. Givens, 704 F.2d 181, 188 (5th Cir. 1983) (AIf [the contractor] was an employee of 

defendant, the plaintiff field workers were also defendant=s employees.@); Arredondo v. Delano 

Farms Co., No. 1:09-cv-01247, 2012 WL 1232294 at *9 (E.D. Cal. Apr. 12, 2012) (AIf it is 

determined that the farm labor contractor is an employee of the agricultural employer, the 

agricultural workers are deemed to be employees of the agricultural employer and the inquiry 

ends.@); Monville v. Williams, No. JH-84-1648, 1987 WL 42404 at *5 (D. Md. Oct. 8, 1987) (AIf 

the farm labor contractor who recruited the agricultural workers in question is an employee of 

the farmer, it follows that the farm workers are also the farmer=s employees.@) 

In determining whether Bontemps was an employee of Davis,= as opposed to an 

independent contractor, the ultimate issue is whether Bontemps economically depended on 

Davis. The Court must determine, inter alia, if Bontemps’ labor contracting business was 

sufficiently large so that Bontemps was genuinely “in business for himself.@ Beliz, 765 F.2d at 

1327-28. In this case, the unrebutted evidence reflects that Bontemps operated more as Davis’ 

foreman than as an independent farm labor contractor. Bontemps had no separate business and 

instead worked exclusively for Davis. By his own admission, Bontemps worked as a manager 

for Davis, performing a wide range of jobs, of which recruiting harvest labor was but one. Davis 

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directly paid Bontemps for his work, with all of his tasks other than recruiting labor paid through 

a weekly salary. Davis issued a W-2 form to Bontemps as an employee of his farm. Bontemps 

lived rent-free in a room at Davis’ packing shed. 

Bontemps’ dependence on Davis is obvious when their relationship is analyzed under the 

relevant factors identified in the United States Department of Labor’s AWPA regulations, 29 

C.F.R. ' 500.20(h)(4):9

 

!The nature and degree of the putative employer=s control as to the manner in 

which the work is performed. Davis controlled every facet of the work of Bontemps= beanpicking crew.10 He set the overall harvest schedule and decided which fields would be 

harvested each day. Davis reserved and exercised his right to remove members from Bontemps=

harvesting crew and assign them on a daily basis to other jobs on the farm on an as needed basis. 

It was Davis who decided when Bontemps= crew would be transferred en masse to work in the 

packing shed, even though Bontemps’ compensation rate as a farm labor contractor was 

considerably lower for packing shed work than it was for providing harvest labor. Davis visited 

the fields three to five times daily during harvesting, often spending as much or more time in the 

 9

The Department of Labor=s interpretation of the statutory language of Aemploy@ in 

AWPA at 29 C.F.R. ' 500.20(h)(4) and (5) is entitled to significant weight, particularly because 

it was incorporated into a formal rulemaking. Charles v. Burton, 169 F.3d 1322, 1328, n.10 

(11th Cir. 1999). 

10Among the factors indicating significant grower control over a labor contractor are (1) 

grower=s control of overall harvest schedule; (2) control over the number of workers used for 

harvest; (3) grower=s advice to contractor as to when to begin the harvest; (4) grower=s power to 

determine the days for harvest; (5) grower=s right to inspect the work of the contractor=s crew 

members; and (6) presence of grower at jobsite on a daily basis. Arredondo, 2012 WL 1232294 

at *10 (citing Torres-Lopez v. May, 111 F.3d 633, 642 (9th Cir. 1997)); Castillo v. Givens, 704 

F.2d at 189, n.17 (describing grower control through non-supervisory activities vis a vis the field 

workers).

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fields than Bontemps himself. When Bontemps was not in the fields, direct supervision of the 

harvest workers was provided by one of Davis= employees, Addly Pierre. 

!The putative employee=s opportunity for profit or loss based on his/her managerial 

skill. Davis sharply circumscribed Bontemps= managerial options. Davis alone decided that 

harvesting work would be paid on a piece-rate basis, with packing shed work paid by the hour. 

Besides determining the wage rates, Davis decided when and where the members of Bontemps=

crew would work. While Bontemps could realize a profit from his labor contracting activities, 

his compensation was based entirely on the volume of produce harvested by his crew, which was 

largely determined by decisions made unilaterally by Davis, rather than on any entrepreneurial 

skills Bontemps possessed. Beliz, 765 F.2d at 1328 (contractor was an employee, in part because 

his profit was determined by the grower=s decisions as to the days worked and the amount of 

produce to be harvested). Because Bontemps provided no risk capital, his opportunity for loss 

was negligible. Luna v. Del Monte Fresh Produce, No. 1:06-cv-2000, 2008 WL 754452 at *8 

(N.D. Ga. Mar. 19, 2008) (contractor found to be employee in part because A[g]iven the limited 

nature of her investment, [the contractor=s] opportunity for loss was practically nonexistent.@). 

!The putative employee=s investment in equipment. The only equipment Bontemps 

contributed to the harvest operation was a van he used to transport some of the members of his 

crew to the jobsite. However, even this van was often driven by Davis= employee, Addly Pierre, 

and Davis himself drove some of Bontemps’ crewmembers to the fields in his own pickup. By 

contrast, Davis provided all the capital for seed, fertilizer and chemicals to produce the crops, as 

well as the equipment used for planting and cultivation. Davis also supplied all of the materials 

and equipment used by the members of Bontemps= crew in the harvest operations, including the 

picking sacks and the portable toilets, hand washing facilities and drinking water at the jobsite. 

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Davis also provided housing for the members of Bontemps= crew at a nominal charge. 

!Whether the skills rendered by the putative employee require special skill. Other 

than being bilingual in English and Haitian Creole, Bontemps brought no specialized skill set to 

the job. Monville, 1987 WL 42404 at *5 (contractor had no special skills that the farmer did not 

possess other than his ability to speak the language of the Haitian vegetable pickers, the farmer 

made all critical decisions regarding planting, fertilizing and irrigation and the contractor 

provided no risk capital). Bontemps was unable to even maintain the payroll records on his 

crew, and relied on one of Davis’ employees, Addly Pierre, to both prepare the payroll and to 

issue wage statements to the pickers. Neither did Bontemps’ oversight of the harvest suggest 

any specialized skills. Bontemps= had no special skills in overseeing the harvest; Facts 34 and 

35. Beliz, 765 F.2d at 1328 (contractor offered no special skills when he simply provided 

Aroutine supervision of the kind commonly given by foremen”). Indeed, much of the harvesting 

supervision was provided by one of Davis’ employees, Addly Pierre. 

!The degree of permanency and duration of the working relationship. Bontemps 

has been employed on Davis= farm for over a decade and has worked exclusively for Davis since 

2008. He lived rent-free at Davis= packing shed. Arredondo, 2012 WL 1232294 at *13 

(permanency exists where contractor worked for farm for over 19 years and farm provided rentfree a complex to contractor for his use). Bontemps works year-round as a manager for Davis, 

performing a wide range of jobs, most of which do not involve labor contracting. 

!The extent to which the services rendered by the putative employee are an integral 

part of the putative employer=s business. A worker who performs a routine task that is a 

normal and integral part of the grower=s production is likely to be dependent on the grower=s 

overall production. Antenor, 88 F.3d at 937 (harvesting is integral to bean growers= business); 

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see also Charles, 169 F.3d at 1332-33. Davis acknowledges that the harvesting work of 

Bontemps= crew is a crucial and integral part of Davis= farming business. 

Having reviewed these facts, it is clear that Bontemps was Davis’ employee during the 

harvest seasons at issue. Accordingly, the members of his crew, including the domestic 

farmworker Plaintiffs, were also employees of Davis. 

 However, even if Bontemps was an independent contractor rather than an employee, this 

Court finds that Davis was their joint employer and thereby responsible for compliance with the 

AWPA=s requirements. Under the AWPA, a worker can be jointly employed by more than one 

entity at the same time. H.R. Rep. 97-885, 97th Cong. 2d Sess. (1982), reprinted in 1982 U.S. 

Code Cong. & Adm. News 4547, 4552 (the inclusion of the Asuffer or permit@ definition in the 

AWPA Awas deliberate and done with the clear intent of adopting the >joint employer= doctrine as 

a central foundation of this new statute.@); Charles 169 F.3d at 1327-29 (holding that growers 

and farm labor contractor jointly employed crew of bean pickers); see also Antenor, 88. F.3d at 

929-30. 

 Congress deliberately included the joint employment concept in the AWPA because of 

the widespread use of labor contractors in agriculture. The House Committee that drafted the 

AWPA stressed that the adoption of the FLSA definition of “employ” was “done with the clear 

intent of adopting the ‘joint employer’ doctrine as a central foundation of this new statute” and 

“the indivisible hinge between certain important duties imposed for the protection of migrant and 

seasonal workers and those liable for any breach of those duties.” H.R. Rep. 97-885, 97th Cong. 

2d Sess., at 6, reprinted at 1982 U.S. Code Cong. & Adm. News 4552; The joint employer 

concept was deemed “the best means by which to insure that the purposes of this Act would be 

fulfilled. H.R. Rep. 97-885, 97th Cong. 2d Sess., at 7, reprinted at 1982 U.S. Code Cong. & 

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Adm. News 4553. 

The “suffer or permit” definition of employment included in the FLSA was borrowed 

from early state child labor laws specifically designed to reach businesses that used middlemen 

to illegally hire and supervise children. Antenor, 88 F.3d at 929 n.5 (citing Rutherford Food 

Corp. v. McComb, 331 U.S. 722, 728 n.7 (1947)). Many of the young children who were the 

intended beneficiaries of early child labor laws were employed by undercapitalized and 

economically marginal entities that were independent contractors at common law. Bruce 

Goldstein, et al., Enforcing Fair Labor Standards in the Modern American Sweatshop: 

Rediscovering the Statutory Definition of Employment, 46 UCLA L. Rev. 983, 1028-39 (1999). 

The “suffer or permit” formulation was developed to overcome the limiting common law 

principles of master and servant by holding accountable those businesses found to have the 

power to prevent the unlawful employment of children, even when intermediaries were used to 

hire and supervise their work. Id. at 1039-47. In a case cited favorably in Antenor, 88 F.3d at 

929 n.5, Judge Cardozo stated with regard to New York’s child labor law: 

 The command is addressed to him. Since the duty is his, he may not escape it by 

delegating it to others. He breaks the command of the statute if he employs the 

child himself. He breaks it equally if the child is employed by agents to whom he 

has delegated 'his own power to prevent.' ... The personal duty rests on the 

employer to inquire into the conditions prevailing in his business. He does not rid 

himself of that duty because the extent of the business may preclude his personal 

supervision, and compel reliance on subordinates ... The cases must be rare where 

prohibited work can be done within the plant, and knowledge or the consequences 

of knowledge avoided. 

New York ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 121 N.E. 474, 476 (N.Y. 1918) 

(company liable where its rules prohibited, but failed to prevent, milk truck drivers from hiring 

and paying minors to guard trucks during deliveries). 

 In applying the joint employment test, Congress emphasized that “it is the economic 

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reality, not contractual labels, nor isolated factors, which is to determine employment 

relationships under this Act.” H.R. Rep. 97-885, 97th Cong. 2d Sess., at 7, reprinted at 1982 

U.S. Code Cong. & Adm. News 4553. The ultimate inquiry is whether the worker is 

economically dependent on the putative employer for his livelihood. Aimable v. Long & Scott 

Farms, Inc., 20 F.3d 434, 439 (11th Cir. 1994) ("To determine whether an employer/employee 

relationship exists...we look...to the "economic reality" of all the circumstances concerning 

whether the putative employee is economically dependent upon the alleged employer."); Bartels 

v. Birmingham, 332 U.S. 126, 130 (1947) ("[I]n the application of social legislation employees 

are those who as a matter of economic reality are dependent on the business to which they render 

service."). The economic dependence test is simply a means of applying the "suffer or permit 

to work" standard. If a worker is dependent on an entity, that entity plainly suffers the employee 

to work. 

 In much of crop agriculture, the harvest workers’ livelihood is a function of two basic 

variables: the amount of work available and the wage rates paid for that work. The worker is 

dependent on any putative employer which has the power to determine either of these variables. 

Whether a grower has sufficient power to determine the amount of work offered or the wages 

paid is often gauged through the application of a number of factors which, properly applied, shed 

light on the nature of employment relationships. Antenor, 88 F.3d at 932. The Eleventh Circuit 

has detailed the proper use of these factors in evaluating putative joint employment relationships 

in agriculture. In applying the factors, the inquiry is not whether the worker is more 

economically dependent on one entity than another, with the winner avoiding responsibility as an 

employer. Instead, each employment relationship must be evaluated separately, to determine 

whether the putative employer has suffered or permitted the employee to work. No one factor is 

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determinative and the absence of evidence as to any one factor does not preclude a finding of 

joint employment. Instead, the factors are to be used as tools to evaluate an employment 

relationship, with the weight given each factor based on the degree to which it sheds light on the 

workers= economic dependence on the putative employer. Antenor, 88 F.3d at 932-33. 

 Because of perceived misconceptions regarding joint employment relationships in 

agriculture, the United States Department of Labor in 1997 issued regulations under the AWPA 

to provide guidance in determining economic dependence, and ultimately, whether a joint 

employment relationship exists. 29 C.F.R. ' 500.20(h)(5)(iv). The Eleventh Circuit has noted 

that the Department of Labor’s 1997 AWPA regulations are entitled to significant weight. 

Charles, 169 F.3d at 1328, n.10; Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 173-74 

(2007) (holding Department of Labor interpretive regulations are entitled to controlling 

deference). 

 Davis controlled the amount of work available to the domestic workers Plaintiffs and the 

others in the Bontemps crew. He decided when and where the individual workers would be 

assigned, based on the needs of the farm. Davis also had the power to dictate the wage rates paid 

the domestic farmworkers. He set the determined that harvesting work would be paid on a piecerate basis, creating an incentive for pickers to maximize their production and thereby lessening 

the need for supervisory oversight to prod the pickers to work hard. He likewise decided that the 

workers would receive an hourly rate for their packing shed work and set the rate for this work, a 

rate that was paid both to Davis’ direct employees working in the packing shed as well as to the 

members of Bontemps’ crew who worked alongside them. 

 Analysis under the Department of Labor’s joint employment regulations further 

illuminates the relationship between Davis and the harvest workers: 

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!Davis controlled the work of the domestic farmworkers. The initial joint 

employment factor identified by the Department of Labor=s regulations examines whether the 

putative employer has the power, either alone or through a labor contractor, to direct, control or 

supervise the workers or the work performed, directly or indirectly. 29 C.F.R. 

' 500.20(h)(5)(iv)(A). Davis controlled every important facet of the domestic farmworkers=

employment. He decided which fields would be harvested each day and the amount of produce 

to be harvested. Charles, 169 F.3d at 1330 (control indicated when the grower determines the 

fields in which the workers will pick and the date on which a field will be harvested). He 

retained and occasionally exercised the right to remove members from Bontemps= harvesting 

crew and assign them on a daily basis to other jobs on the farm on an as needed basis. Davis 

decided when the entire Bontemps crew would be assigned to the packing shed for work. 

Charles, 169 F.3d at 1329 (control is indicated when the grower is able to assign work to specific 

workers). Davis also demonstrated to the workers how to perform the job correctly and advised 

Bontemps when his onsite inspections revealed improper picking by specific crew members. 

The fact that he relied on Bontemps to communicate his concerns to the workers in their native 

Haitian Creole does not negate Davis’ control over the harvesting work. Joint employment 

relationships in agriculture often involve this sort of indirect supervision. Hodgson v. Griffin & 

Brand of McAllen, Inc., 471 F.2d 235, 238 (5th Cir. 1973) (AThe fact that [the farmer] effected 

the supervision by speaking to the crew leader, who, in turn spoke to the harvest workers, rather 

than speaking directly to the workers does not negate a degree of apparent on-the-job control 

over the harvest workers.@); Torres-Lopez, 111 F.3d at 642-43 (9th Cir. 1997). 

!Davis had the power to modify the employment conditions and to determine pay 

rate rates of the bean pickers. The second Department of Labor factor assesses whether the 

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putative employer has the right to hire or fire workers, modify the workers= employment 

conditions or determine the pay rates of method of payment. 29 C.F.R. ' 500.20(h)(5)(iv)(B). 

Davis was able to modify the domestic workers’ employment conditions through his unfettered 

power to place them wherever they were needed on the farm. On a daily basis, Davis 

determined when the crew would harvest vegetables and the amount of produce to be picked. 

Facts 27 and 28. Charles,169 F.3d at 1331 (growers= control over the timing of the harvest 

indicates the power to modify employment terms). Davis also determined, at least indirectly, 

the pay rates for the workers by deciding that harvesting work would be compensated on a piece 

rate, rather than an hourly, basis. 

!The parties= relationship was relatively permanent and exclusive. The third 

Department of Labor factor evaluates the duration and degree of permanency of the parties’ 

relationship, in the context of the agricultural activity at issue, which is often seasonal in nature. 

29 C.F.R ' 500.20(h)(5)(iv)(C). Where a labor contractor and his crew are engaged for the 

duration of the operation and are obligated to work only for or be available to the putative 

employer at its discretion, this suggests economic dependence. Migrant and Seasonal 

Agricultural Worker Protection Act, 62 Fed. Reg. 11,734, 11740 (Mar. 12, 1997). Bontemps=

crew worked exclusively for Davis; indeed, in order to reside in Davis= housing, the members of 

Bontemps’ crew were expected to work for his farm. 

!Bean harvesting is unskilled, rote work. Another indicator of employment status is 

the extent to which the services rendered are repetitive or rote tasks requiring little skill. 29 

C.F.R. ' 500.20(h)(5)(iv)(D). Unskilled jobs, particularly those performed on a piece-rate basis, 

require less direct supervision. Antenor, 88 F.3d at 935. In an earlier case involving Haitian 

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migrant workers, the Eleventh Circuit held that is Aunquestionable@ that hand-picking snap beans 

Ais a repetitive and rote task requiring relatively little training.@ Charles, 169 F.3d at 1332. 

!Harvesting is an integral part of Davis= overall business. The fifth Department of 

Labor factor inquires as to whether the activities performed are an integral part of the overall 

business of the agricultural employer, 29 C.F.R. ' 500.20(h)(5)(iv)(E). A worker who performs 

a routine task that is a normal and integral part of the grower=s production is likely to be 

dependent on the grower=s overall production. Antenor, 88 F.3d at 937; Charles, 169 F.3d at 

1332-33. Harvesting the crop is an integral part of a bean grower=s business, and Davis 

acknowledged as much. Antenor, 88 F.3d at 937; Charles, 169 F.3d at 1332. 

!The domestic farmworkers worked on Davis= premises. The sixth factor set out in 

the Department of Labor=s regulation considers whether the work is performed on the premises 

of putative employer. 29 C.F.R. ' 500.20(h)(5)(iv)(F). This element reveals the worker=s 

dependence on an entity because without the land, the employee might not have work. In 

addition, the business owning the land will be likely to be able to prevent labor law violations, 

even if it delegates hiring and supervisory responsibilities to labor contractors. Antenor, 88 F.3d 

at 936-37. It is undisputed that the domestic farmworker plaintiffs worked on Davis= farm or at 

his packing shed. 

!Davis undertook responsibilities ordinarily performed by employers. The final 

factor identified by the Department of Labor regulations considers whether the putative employer 

undertakes responsibilities ordinarily performed by an employer, including preparing payroll 

records, issuing paychecks, providing workers= compensation insurance or providing field 

sanitation facilities or tools for use by the workers. 29 C.F.R. ' 500.20(h)(5)(iv)(G). When a 

putative employer voluntarily assumes responsibility for workplace obligations the law imposes 

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on employers, this indicates voluntary assumption of employer status for other purposes. 

Migrant and Seasonal Agricultural Worker Protection Act, 62 Fed. Reg. at 11,736. It was 

Davis’ admitted employee, Addly Pierre, who prepared most of the payroll records for 

Bontemps’ bean-picking crew and prepared the pay envelopes. In addition, Davis provided all of 

the field sanitation facilities. 

Each of the Department of Labor’s regulatory factors indicates that Davis jointly 

employed the domestic farmworker Plaintiffs. His involvement with the members of Bontemps’ 

crew extended to virtually every facet of their employment. No meaningful employment 

decisions were left to Bontemps’ sole discretion. This was not a situation where the labor 

contractor was able to exercise Aabsolute, unfettered, and sole control@ over the workers and their 

employment. Aimable, 20 F.3d at 440-41. 

Defendants’ violations of the AWPA

 The domestic farmworker Plaintiffs seek summary judgment for Davis’ alleged violation 

of five separate provisions of the AWPA. Each of these violations will be discussed separately. 

A. Disclosure violations 

The AWPA requires that agricultural employers provide migrant workers at the time of 

their recruitment with a written statement of the proffered wages and job terms. 29 U.S.C. '

1821(a).11 Under the AWPA, Davis cannot escape his obligations merely because he chose to 

hire through Bontemps as an intermediary. H.R. Rep. 97-885, 97th Cong. 2d Sess., at 14, 

reprinted at 1982 U.S. Code Cong. & Adm. News 4560; Saintida v. Tyre, 783 F. Supp. 1368, 

 11Even though some of the Plaintiffs traveled to Davis= farm on their own in search of 

work, Davis was nonetheless obligated to provide the written disclosures. Contreras v. Mt. 

Adams Orchard Corp., 744 F. Supp. 1007 (E.D. Wash. 1990) (“recruitment” means “to hire”). 

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1373 (S.D. Fla. 1992); Aviles v. Kunkle, 765 F. Supp. 358, 366, n.9 (S.D. Tex. 1991). 

Bontemps acknowledged that the neither the Plaintiffs nor the other crew members were 

ever provided with such written disclosures. 

B. Recordkeeping violations

The AWPA imposes specific recordkeeping obligations upon agricultural employers. 

Among other things, agricultural employers are required to record accurately the number of 

hours worked by each employee, maintain permanent addresses of all workers and list all 

withholdings from wages and the purpose for each withholding. 29 U.S.C. ' 1821(d)(1) and 29 

C.F.R. ' 500.80(a). Accurate payroll records are essential in order to determine whether 

workers have been paid the FLSA minimum wage. Fields v. Luther, 1988 WL 59963 at * 12 (D. 

Md. May 4, 1988); Bertrand v. Jorden, 672 F. Supp. 1417, 1425 (M.D. Fla. 1987). 

Davis relied on Bontemps to maintain records on the members of his crew. Bontemps 

failed badly in these recordkeeping duties, many of which were delegated to Addly Pierre, a 

Davis employee. No records were kept as to the time the crew spent harvesting peas or beans 

paid on a piece-rate basis. Osias v. Marc, 700 F. Supp. 842, 844 (D. Md. 1988) (payroll records 

must accurately reflect the hours worked by each employee); see also Contreras v. Mt. Adams 

Orchard Corp., 744 F. Supp. 1007, 1008 (E.D. Wash. 1990). The records also listed the 

production of several workers under a single picker=s name on the records. Osias, 700 F. Supp. 

at 844 (the AWPA requires that each worker=s production and earnings be listed separately). 

Finally, these records were not retained by either Davis or Bontemps, despite the AWPA=s 

requirements. 29 U.S.C. ' 1821(d)(1) (requiring records to be maintained for three years). 

C. Wage statement violations

The AWPA, 29 U.S.C. ' 1821(d)(2), requires that agricultural employers provide migrant 

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workers each pay period with wage statements containing certain data regarding hours worked, 

wages earned and withholdings from wages. These wage statements permit workers to verify the 

correctness of their pay and to raise any concerns with the employer regarding the wages and 

how these wages were calculated. In addition, these wage statements provide workers with a 

permanent record of their employment for purposes such as filing tax returns and applying for 

unemployment compensation benefits. Saintida, 783 F. Supp. at 1372; Frenel v. The Freezeland 

Orchard Co., 1987 WL 46894, at *3 (E.D.Va. Dec. 24, 1987). 

The only wage statements provided to the domestic farmworker Plaintiffs were the 

envelopes in which their cash wages were enclosed. The envelopes did not include the hours 

worked or piece-rate units earned, nor did they show the hours worked on piece-rate tasks or the 

employer=s name and address. 

D. Wage payment violations

The AWPA mandates that agricultural employers pay farmworkers their wages promptly 

when due. 29 U.S.C. ' 1822(a). In interpreting this provision, courts have this provision also 

requires employers to timely report the worker=s earnings to the Social Security Administration 

and to file appropriate W-2 forms. Elizondo v. Podgorniak, 70 F. Supp. 2d 758, 777 (E.D. Mich. 

1999); Saintida, 783 F. Supp. at 1372. 

The Defendants acknowledge that no Social Security taxes were paid on the wages of 

Bontemps= crew for the four-year period covered by this litigation, nor were their wages from 

work on the Davis farm reported to the Social Security Administration so that the workers’ 

individual earnings records could be credited with this work. 

E. Housing violations

The AWPA requires that prior to occupancy, any person who owns or controls housing 

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used to accommodate migrant workers must have the facility inspected and approved by an 

appropriate health authority. 29 U.S.C. ' 1823(b)(1).12 Persons are considered to control 

migrant housing if they manage, supervise or administer the facility, and are responsible for 

making repairs to the facility. Renteria-Marin v. Ag-Mart Produce, Inc., 537 F.3d 1321, 1328 

(11th Cir. 2008). 

During the time they worked for Davis, the Plaintiffs resided in mobile homes Davis 

rented from his father. Davis was responsible for maintaining and repairing the mobile homes, 

and thereby was obligated to ensure that the facilities were inspected and permitted before the 

migrant workers moved into the trailers. Prior to 2011, no health authority had ever inspected or 

permitted these facilities for occupancy by migrant workers. 

Intentionality of Davis’ AWPA violations

In order for farmworkers to recover damages under the AWPA, the violations must be 

Aintentional.@ 29 U.S.C. ' 1854(c)(1). Specific intent to violate the law is not required; rather, 

the Act employs the common civil standard which holds one liable for the natural and 

foreseeable consequences of one=s acts. Cochran v. Vann, 963 F.2d 384, 1992 WL 103977 (11th 

Cir. 1992) (unpublished decision); Saintida, 783 F. Supp. at 1374; Wales v. Jack M. Berry 

Groves, Inc., 192 F. Supp. 2d 1292, 1303 (M.D. Fla. 2000); Campbell v. Miller, 836 F. Supp. 

827, 830 (M.D. Fla. 1993). In cases where violations occur as a part of a defendant's normal 

business practices, no further showing of intent is required. Stewart v. Everett, 804 F. Supp. 

1494, 1498 (M.D. Fla. 1992); Osias, 700 F. Supp. at 844. 

 12The AWPA=s housing provisions apply to Apersons@ who furnish housing to migrant 

workers, regardless of whether they are agricultural employers under the Act. 29 U.S.C. ' 1823; 

Howard v. Malcolm, 629 F. Supp. 952, 953-54 (E.D.N.C. 1986). 

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This Court finds that Davis= violations of the AWPA were intentional. The violations 

were not isolated oversights but resulted from Davis= standard operating procedures over four 

consecutive harvest seasons. 

Damages to be awarded for AWPA violations

The AWPA provides that aggrieved farmworkers who bring civil actions may be awarded 

their actual damages or up to $500 in statutory damages for each violation of the AWPA. 29 

U.S.C. ' 1854(c)(1). Separate damage awards for each season are appropriate in this case 

because each harvest constitutes a distinct and separate transaction. Leach v. Johnston, 812 F. 

Supp. 1198, 1211 (M.D. Fla. 1992); Rivera v. Adams Packing Ass=n, Inc., 707 F.2d 1278, 1283 

(11th Cir. 1983); Bertrand 672 F. Supp. at 1426. 

The purpose of statutory damages is two-fold. First, they serve to compensate injured 

farmworkers, especially in those instances where damages are inherently difficult to measure. 

Leach, 812 F. Supp. at 1211. Second, statutory damages are designed to promote enforcement of 

the Act and to deter violations, both by the defendant and other agricultural employers. Martinez 

v. Shinn, 992 F.2d 997, 999 (9th Cir. 1993); Leach, 812 F. Supp. at 1211; Castillo v. Case 

Farms of Ohio, Inc., 96 F. Supp. 2d 578, 631 (W.D. Tex. 1999) (“[T]he primary purpose of the 

Act’s statutory awards provisions is promoting compliance by agricultural employers”). To this 

end, damage awards should be large enough so it is not cheaper to violate the Act and be sued 

than to comply with the AWPA=s requirements. Castillo, 96 F. Supp. 2d at 631; Bertrand, 672 F. 

Supp. at 1425. Furthermore, the legislative history of the Act notes that farmworkers who 

attempt to assert their rights must overcome a general background of fear and intimidation 

caused by the widespread practice of retaliation against those who complain about violations. 

Accordingly, awards should be adequate to encourage farmworkers to assert their statutory 

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30

rights. Castillo, 96 F. Supp. 2d at 631; Bertrand, 672 F. Supp. at 1425. 

In assessing statutory damages in a manner so as to effectuate the deterrent, as well as the 

compensatory, purposes behind the Act's civil remedy, courts have considered a number of 

factors. Wales, 192 F. Supp. 2d at 1309. Under the circumstances of this case, these factors 

merit the award of the maximum $500 in statutory damages for each of Davis= violations of the 

AWPA, or $2500 per harvest season per Plaintiff: 

!Total amount of the award. The domestic farmworker Plaintiffs were subjected to 

five substantive violations of the AWPA (disclosure, recordkeeping, wage statement, wage 

payment and housing provisions) during each harvest season. The total statutory damages 

awarded are $112,500 ($2500 for each of the total of 45 harvest seasons worked by the 29 

domestic farmworker Plaintiffs). This amount is neither oppressive nor unreasonable, given the 

violations involved and their persistence over time. Any lesser award would offer little incentive 

for Davis and other farm operators to comply with the AWPA=s requirements. Indeed, a modest 

award would likely make it cheaper to violate the Act and be sued than to comply with its 

dictates, given the potential savings Davis can realize by keeping no payroll records, paying no 

employment taxes and using unpermitted housing to accommodate his harvest workers. See, 

e.g., Alzalde v. Ocanas, 580 F. Supp. 1394, 1396 (D. Colo. 1984) ($227,500 in statutory damages 

awarded in default judgment against farm labor contractor in action brought by 65 farmworkers 

under the corresponding provisions of the AWPA=s predecessor statute). 

!Nature and persistence of the violations. These violations were not merely 

technical; they directly affected the income and well-being of the workers. Courts have 

repeatedly concluded that the sort of recordkeeping violations present in this case were 

substantive, rather than technical, in nature. See Martinez, 992 F.2d at 1000; Washington v. 

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Miller, 721 F.2d 797, 803 (11th Cir. 1983); Saintida, 783 F. Supp. at 1375; Leach, 812 F. Supp. 

at 1211.13 Similarly, courts have viewed the failure to provide complete and accurate wage 

statements as a serious, substantive violation of the AWPA. Saintida, 783 F. Supp. at 1375. 

Davis= failure to pay any Social Security taxes will impact the Plaintiffs and the other migrant 

workers for years to come. 

Particularly telling is the persistence of these violations over time. This Court has found 

no reported decision under the AWPA in which a grower’s violations of farmworkers’ 

fundamental rights under the AWPA have persisted for as many years as have been shown in this 

case.

14

Despite this litigation and repeated investigations by federal and state officials, Davis still 

refuses to keep payroll records, pay Social Security taxes or to obtain operating permits for his 

labor camp. Only a sizeable monetary damages award will impress on Davis the importance of 

compliance with the AWPA=s requirements. 

!Extent of the defendant=s culpability. For purposes of AWPA damages, a party is 

culpable if the violations were clearly avoidable by the defendant. Leach, 812 F. Supp. at 1211. 

In this case, these violations occurred as a direct result of Davis= decision to ignore Bontemps=

 13Among other things, accurate payroll records are needed in order to determine whether 

workers have received the minimum wage. See Bertrand, 672 F. Supp. at 1425 (AThe 

importance of accurate payroll records is obvious in instances, such as here, where workers=

earnings often fall below the minimum wage established by federal law. Only through accurate 

payroll records of the number of hours worked can the minimum wage obligations be calculated 

with precision.@) Because Davis kept no payroll records whatsoever, it is impossible to 

determine with any precision the unpaid minimum wages due the workers or to correct their 

Social Security earnings records to include their wages for work on Davis= farm. 

14The closest analog found in this regard is Leach, where the grower violated many of the 

same provisions of the AWPA as Davis for three consecutive harvest seasons. Leach, 812 F. 

Supp. at 1212.

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slipshod recordkeeping practices and failure to pay Social Security taxes on the workers=

wages.15 Davis chose to continue house workers at his unpermitted labor camp, thereby savings 

the cost of bringing the facilities up to state and federal standards. These AWPA violations were 

not mere oversights on Davis= part, but instead were actions regularly and deliberately 

undertaken, and serving to substantially reduce his operating costs. Despite being repeatedly 

reminded of his obligations by investigators from the United States Department of Labor and 

through this litigation, Davis stubbornly refused to comply with the law, perhaps in an effort to 

retain the financial benefits he realized by ignoring its dictates. Leach, 812 F. Supp. at 1211 

(defendant’s culpability supports maximum award of statutory damages where “violations did 

not result from ignorance and misconceptions as to the state of the law, but rather from an 

abusive disregard for the Plaintiffs’ rights.”) 

 !Damage awards in similar cases. Courts have generally awarded substantial statutory 

damages for the violations of the AWPA at issue here. Furthermore, there has been substantial 

inflation since the AWPA was enacted in 1982, reducing the deterrent value of the maximum 

statutory award. See Castillo, 96 F. Supp. 2d at 631, n.64 (AToday, a $500 damage award may be 

necessary to achieve the same level of deterrence as $300 in 1983."). See also Herrera v. Singh, 

103 F. Supp. 2d 1244, 1249 (E.D. Wash. 2000). 

 Many courts have awarded the full $500 in statutory damages for the violations at issue 

in this case: 

Disclosures (29 U.S.C. ' 1821(a)) - Leach; Herrera: Ortiz v. Paramo, 2009 WL 

4575618 (D.N.J. 2009); Bertrand. 

 15This is not altogether surprising, because Davis does not pay Social Security taxes on 

his own employees, except for bookkeeper Pat Seguin. 

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Recordkeeping (29 U.S.C. ' 1821(d)(1)) - Washington v. Miller, 721 F.2d 979 

(11th Cir. 1983); Bertrand; Herrera; Leach.

Wage statements (29 U.S.C. ' 1821(d)(2)) - Leach; Avila v. A. Sam & Sons, 856 

F. Supp. 763 (W.D.N.Y. 1994). 

Payment of wages when due (29 U.S.C. ' 1822(a)) – Lainez v. Baltazar, 2013 

WL 3288369, at *2 (June 28, 2013); Martinez; Ortiz.

Housing (29 U.S.C. ' 1823(b)(1)) – Lainez; Herrera.

!Defendant=s ability to prevent future violations of the Act. Davis continues to farm 

and still relies on Bontemps to furnish him harvest labor. As a result, he Ahas the ability to 

prevent future violations simply by complying with the requirements of the AWPA.@ Stewart, 

804 F. Supp. at 1499. Without a sizeable damages award, Davis will have little incentive to take 

the steps to comply with the Act=s requirements in the future. 

!Substantive nature of the violations. The violations in this case were 

unquestionably substantive in nature. Indeed, these sorts of violations have previously been 

described by the Eleventh Circuit as "not mere technicalities but serious violations which denied 

Plaintiffs the substantive protections of the [Act]." Washington, 721 at 803. These were not 

merely minor violations; they directly impacted the lives of the Plaintiffs. 

!The circumstances of the case. Davis realized considerable savings in his labor costs 

by failing to keep payroll records. This concealed potentially widespread minimum wage 

violations and spared him thousands of dollars in Social Security taxes. A sizeable award of 

statutory damages is appropriate so that it is not cheaper for Davis and other farmers to ignore 

the AWPA=s provisions and be sued rather than to comply with the Act=s requirements. Castillo, 

96 F. Supp. 2d at 631; Bertrand, 672 F. Supp. at 1425. 

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!The total number of plaintiffs involved. There are 29 domestic farmworker Plaintiffs 

in this action. As a result, even if the full amount of statutory damages requested is awarded, 

Davis= liability under the AWPA is $112,500, a modest amount given the pervasive violations 

over the years. Furthermore, these workers represent a small fraction of the farmworkers 

subjected to these unlawful practices over these four harvest seasons, making an award of this 

size appropriate. 

!The total number of violations. Davis violated several of the most important 

substantive provisions of the AWPA, evidencing a blatant disregard for the Act=s requirements. 

The domestic farmworker Plaintiffs have chosen to forego claims relating to other apparent 

violations of the AWPA in order to concentrate on these particularly egregious infractions.16

Given the gravity of the violations, this Court finds that an award of $112,500 is 

appropriate in this case. 

!Recovery on closely related claims. The only relief the farmworkers will receive is 

under the AWPA. Unlike the class members in Wales, Plaintiffs here have not recovered on any 

other related claims. This is probably due in part because of Davis’ wholesale failure to keep 

payroll records, which would have permitted this Court to determine the amount of additional 

minimum wages, if any, due Plaintiffs and to ensure their earnings for harvesting Davis’ crops 

were reported to the Social Security Administration. 

This Court expressly determines that there is no reason for delay and expressly directs the 

entry of judgment as set out in this order. See Fed. R. Civ. P. 54(4). This is particularly true 

 16Among other things, Bontemps never bothered to register as a farm labor contractor and 

the workers were driven to the fields by Addly Pierre, who admittedly did not have a valid 

driver’s license.

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where, as here, counsel has indicated Plaintiffs are likely to abandon the balance of their claims. 

In any event, unless and until Plaintiffs voluntarily dismiss the balance of their claims, the case 

will go forward on all remaining claims. Moreover, Plaintiffs may apply for an award of costs in 

light of this judgment. 

For these reasons, 

IT IS ORDERED 

The Domestic Farmworker Plaintiffs' Motion for Partial Summary Judgment, ECF No. 

131, is GRANTED. The Clerk shall enter judgment for the Plaintiffs against Defendants, 

Steven M. Davis and Steven Davis Farms, LLC, jointly and severally, in the total amount of 

$112,500.00. Further, each Plaintiff shall be awarded $500.00 in statutory damages for each of 

the five (5) AWPA violations per harvest, for a total of $2,500.00 for each harvest season 

worked. The amounts due individual Plaintiffs for their respective seasons worked are as follow: 

Farmworker Plaintiff Seasons Worked AWPA Stat. Damages 

Yves Augustin 2008 2,500.00 

Francillon Badio 2009 2,500.00 

Marie Marthe Beneche 2009 2,500.00 

Juslaine Cherelus 2007, 2008, 2009, 2010 10,000.00 

Dalestin Cherenfant 2007, 2008, 2009, 2010 10,000.00 

Sifort Contreker 2007, 2008, 2009 7,500.00 

Pierre Anes Darvilmar 2007, 2008 5,000.00 

Marie I. Desruisseau 2007, 2008, 2009 7,500.00 

St. Gelus Dufresne 2007, 2008 5,000.00 

Marie Yolene Exume 2009 2,500.00 

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Delinoir Fanette 2008, 2009 5,000.00 

Marie Almonor Faustin 2007, 2008, 2009, 2010 10,000.00 

Devilma Florvil 2007, 2008, 2009, 2010 10,000.00 

Andre Jean-Baptiste 2009, 2010 5,000.00 

Zillianne Joly 2007, 2008 5,000.00 

Merancia Joseph 2007, 2008 5,000.00 

Rosie Joseph 2007, 2010 5,000.00 

Anite Labrousse 2007, 2008, 2009 7,500.00 

Clervis Louis 2009 2,500.00 

Edel Joseph Mayard 2009 2,500.00 

Andrelise Mezilus 2008, 2009 5,000.00 

Decion Nelson 2007, 2008, 2009 7,500.00 

Addly Petitfrere 2007, 2010 5,000.00 

Inocio Andre Simeon 2007, 2008 5,000.00 

Pierre Stimable 2007, 2008, 2009, 2010 10,000.00 

Iclercia St. Juste 2009 2,500.00 

 Mimose Vincent 2009, 2010 5,000.00 

 Epfanie Saintelus Vital 2007, 2008 5,000.00 

Dukens Zephir 2007, 2008, 2009, 2010 10,000.00

Total Amount for AWPA Violations: $112,500.00

 SO ORDERED on July 1, 2014. 

 s/Mark E. Walker 

 United States District Judge 

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ADDENDUM 

Domestic farmworker plaintiff Harvest season(s) worked AWPA statutory 

damages 

Yves Augustin 2008 $2500

Francillon Badio 2009 $2500

Marie Marthe Beneche 2009 $2500

Juslaine Cherelus 2007, 2008, 2009, 2010 $10,000

Dalestin Cherenfant 2007, 2008, 2009, 2010 $10,000

Sifort Contreker 2007, 2008, 2009 $7500

Pierre Anes Darvilmar 2007, 2008 $5000

Marie I. Desruisseau 2007, 2008, 2009 $7500

St. Gelus Dufresne 2007, 2008 $5000

Marie Yolene Exume 2009 $2500

Delinoir Fanette 2008, 2009 $5000

Marie Almonor Faustin 2007, 2008, 2009, 2010 $10,000

Devilma Florvil 2007, 2008, 2009, 2010 $10,000

Andre Jean-Baptiste 2009, 2010 $5000

Zillianne Joly 2007, 2008 $5000

Merancia Joseph 2007, 2008 $5000

Rosie Joseph 2007, 2010 $5000

Anite Labrousse 2007, 2008, 2009 $7500

Clervis Louis 2009 $2500

Edel Joseph Mayard 2009 $2500

Andrelise Mezilus 2008, 2009 $5000

Decion Nelson 2007, 2008, 2009 $7500

Addly Petitfrere 2007, 2010 $5000

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Inocio Andre Simeon 2007, 2008 $5000

Pierre Stimable 2007, 2008, 2009, 2010 $10,000

Iclercia St. Juste 2009 $2500

Mimose Vincent 2009, 2010 $5000

Epfanie Saintelus Vital 2007, 2008 $5000

Dukens Zephir 2007, 2008, 2009, 2010 $10,000

 

* 

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