PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

R. ALEXANDER ACOSTA, 

Secretary of Labor, United States 

Department of Labor,1

 

 Plaintiff-Appellee, 

v. 

PARAGON CONTRACTORS 

CORPORATION; BRIAN JESSOP, 

individually, 

 Defendants-Appellants, 

and 

JAMES JESSOP, individually, 

 Defendant. 

No. 17-4025 

_________________________________ 

Appeal from the United States District Court 

for the District of Utah 

(D.C. No. 2:06-CV-00700-TC)

_________________________________ 

Rick J. Sutherland (M. Christopher Moon, with him on the briefs), of 

Jackson Lewis PLLC, Salt Lake City, Utah, for Defendants-Appellants. 

Maria Van Buren, Counsel for Child Labor and Special FLSA Projects 

(Nicholas C. Geale, Acting Solicitor of Labor; Jennifer S. Brand, Associate 

Solicitor, and Paul L. Frieden, Counsel for Appellate Litigation, with her 

 

1

 In light of Fed. R. App. P. 43(c)(2), we substitute Mr. R. Alexander 

Acosta, the current Secretary of Labor, for Mr. Thomas E. Perez. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 13, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

on the brief), United States Department of Labor, Washington, D.C., for 

Plaintiff-Appellee. 

_________________________________ 

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

_________________________________ 

This case arises out of a 2007 injunction, which prohibited Paragon 

Contractors Corporation and its president (Mr. Brian Jessop) from 

engaging in oppressive child labor. The Department of Labor procured a 

contempt citation, with the district court finding that Paragon and Mr. 

Jessop had violated the injunction by employing children to harvest 

pecans. For this violation, the district court sanctioned Paragon and Mr. 

Jessop by 

 appointing a special master to monitor Paragon’s ongoing 

compliance with the injunction and 

 ordering Paragon and Mr. Jessop to pay $200,000 into a fund to 

compensate the children. 

Paragon and Mr. Jessop appeal the contempt finding and the 

sanctions. We conclude that the district court did not err in 

 finding that Paragon and Mr. Jessop had violated the injunction 

by oppressively employing children and 

 ordering Paragon and Mr. Jessop to pay $200,000. 

But we reverse the district court’s appointment of a special master. 
3 

I. The Use of Children to Gather Pecans and the Subsequent 

Contempt Citation

The Southern Utah Pecan Ranch owned over 100 acres of pecan trees 

in Utah. Through 2007, the Ranch had an informal arrangement with the 

Fundamentalist Church of Jesus Christ of Latter-Day Saints. After the 

Ranch harvested pecans from the trees, the Church could send community 

members to gather the pecans that had fallen to the ground. The gatherers 

consisted largely of children, who gave half of the fallen pecans to the 

Church and half to the Ranch. 

In 2008, the Ranch began a series of year-long contracts with 

Paragon. Under these contracts, Paragon obtained responsibility for 

operating the pecan grove and harvesting the pecans. Paragon received 

70% of the proceeds from the sale of the pecans, and the Ranch received 

30%. 

Though Paragon was to manage the pecan grove, the Church 

continued to send children to gather the fallen pecans. Paragon hired Mr. 

Dale Barlow to fulfill the contract with the Ranch. The Church identified 

Mr. Barlow as the contact person for the gathering operation, and he 

participated in organizing and managing the Church’s efforts to gather the 

fallen pecans. 

In 2012, the Department of Labor investigated Paragon and Mr. 

Jessop, concluding that they had violated the child-labor provisions of the 
4 

Fair Labor Standards Act, 29 U.S.C. § 212. This conclusion led the 

Department of Labor to allege a violation of the 2007 injunction. This 

allegation ultimately led to the finding of contempt. 

II. Did Paragon and Mr. Jessop violate the 2007 injunction?

 Paragon and Mr. Jessop deny violating the 2007 injunction. On this 

issue, we review the district court’s ruling for an abuse of discretion. 

United States v. Ford, 514 F.3d 1047, 1051 (10th Cir. 2008). The court 

abuses its discretion by relying on an error of law or reaching a clearly 

erroneous finding of fact. Id.

 To prevail, the Department of Labor needed to prove by clear and 

convincing evidence “[1] that a valid court order existed, [2] that the 

defendant[s] had knowledge of the order, and [3] that the defendant[s] 

disobeyed the order.” F.T.C. v. Kuykendall, 371 F.3d 745, 756-57 (10th 

Cir. 2004) (en banc) (quoting Reliance Ins. Co. v. Mast Constr. Co., 159 

F.3d 1311, 1315 (10th Cir. 1998)) (alterations in original). Paragon and 

Mr. Jessop do not dispute the first two elements, focusing instead on the 

third element. 

 The 2007 injunction prohibited Paragon and Mr. Jessop from 

employing minors “under conditions constituting oppressive child labor.” 

Appellant’s App’x at 17. Paragon and Mr. Jessop do not question the 

oppressiveness of the labor. Instead, they make two arguments: 
5 

1. The children were not covered by the Fair Labor Standards Act 

because they were volunteers rather than employees. 

2. Even if the children were employees, they were not Paragon’s 

employees; therefore, Paragon and Mr. Jessop are not 

responsible for the employment of the children. 

We reject both contentions. 

A. Were the children volunteers?

 The first question is whether the children were volunteers rather than 

employees. We review de novo the district court’s determination that the 

children were “employees,” which presents an issue of statutory 

interpretation. Johns v. Stewart, 57 F.3d 1544, 1557 (10th Cir. 1995). 

 The statutory definition of “employee” is “any individual employed 

by an employer.” 29 U.S.C. § 203(e)(1). And “employ” is defined as “to 

suffer or permit to work.” Id. § 203(g). These definitions are “exceedingly 

broad.” Tony and Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 295 

(1985). 

Paragon and Mr. Jessop contend that the children are not covered by 

the Fair Labor Standards Act based on (1) the Supreme Court’s opinion in 

Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 

(1985), and (2) the statutory food-bank exception, 29 U.S.C. § 203(e)(5). 

We reject both contentions. 
6 

1. Are the children covered under the Fair Labor Standards 

Act based on Alamo Foundation? 

In Alamo Foundation, the Supreme Court discussed the scope of the 

Fair Labor Standards Act’s coverage of employees. The Court noted that 

the scope of “employee” is “exceedingly broad” but does contain limits. 

471 U.S. at 295. For example, the definition of an “employee” does not 

include “[a]n individual who, ‘without promise or expectation of 

compensation, but solely for his personal purpose or pleasure, worked in 

activities carried on by other persons[.]’” Id. (quoting Walling v. Portland 

Terminal Co., 330 U.S. 148, 152 (1947)). 

 Paragon and Mr. Jessop use this definition, arguing that the children 

were not “employees” because 

 they had no reason to expect compensation and 

 they worked “solely for [their] personal purpose or pleasure.” 

Id. According to Paragon and Mr. Jessop, the children freely chose to 

gather pecans in order to help the Church and the community. Paragon and 

Mr. Jessop point to testimony from some of the children that they viewed 

themselves as volunteers and chose whether to participate in the harvest. 

 The district court disagreed, relying instead on testimony 

characterizing the children’s participation as mandatory. Some children 

and parents testified that 

 the children had been ordered to attend the harvest and 
7 

 the Church had closed the schools when it was time to harvest 

the pecans. 

In addition, one child stated that if she had not worked, she would have 

lost her family and been kicked out of the community. Likewise, parents 

testified that they had sent their children to the harvest because of pressure 

from the Church, and one father expressed fear that his family would be 

separated if he had disobeyed. In light of the testimony, the district court’s 

finding of coercion was not clearly erroneous. Given this finding, we 

conclude that the children did not choose to work for their own “personal 

purpose or pleasure”; they worked because of coercion. 

 Paragon and Mr. Jessop respond that even if the children had been 

coerced, the coercion had come from the Church rather than Paragon. But 

the Alamo Foundation standard does not address the source of the 

coercion.2 Alamo Foundation states only that individuals working for their 

own “personal purpose or pleasure” are not covered by the Fair Labor 

Standards Act. Id. (quoting Walling v. Portland Terminal Co., 330 U.S. 

148, 152 (1947)). Under this standard, the children were not gathering 

pecans solely for their own personal purpose or pleasure. Therefore, Alamo 

Foundation does not support reversal.3

 

2

 The source of the coercion bears instead on which entity was the 

employer: the Church or Paragon. We address that inquiry below. 

3

 We need not decide today whether a third party’s coercion may affect 

volunteer status when the employer is unaware of the coercion. That 
8 

2. Does the food-bank exception apply?

 Paragon and Mr. Jessop also invoke 29 U.S.C. § 203(e)(5), known as 

the “food-bank exception,” which precludes consideration as “employees” 

when workers “volunteer their services solely for humanitarian purposes to 

private non-profit food banks and . . . receive from the food banks 

groceries.” Based on this statute, Paragon and Mr. Jessop argue that the 

children gathered pecans for the benefit of the Bishop’s Storehouse of the 

Church. For this argument, we may assume (without deciding) that the 

Bishop’s Storehouse constitutes a non-profit food bank. See Susan Harthill, 

Shining the Spotlight on Unpaid Law-Student Workers, 38 Vt. L. Rev. 555, 

582 (2014) (“[I]n amending [the Fair Labor Standards Act] . . . , Congress 

chose to only exempt volunteers at food banks and not any other type of 

nonprofit volunteer.”). Even with this assumption, the argument would fail 

because the children did not “volunteer” their services. 

 The Fair Labor Standards Act does not define the term “volunteer.” 

We therefore consider the term’s ordinary meaning. See Conrad v. Phone 

Directories Co., 585 F.3d 1376, 1381 (10th Cir. 2009). Dictionaries 

provide a helpful basis for determining this meaning. Jones v. C.I.R., 560 

 

situation is not present here. The district court found that Paragon and Mr. 

Jessop had known that the Church was sending children to the harvest, and 

the evidence supports this finding. For example, Mr. Jessop and Mr. 

Barlow attended Church meetings where the harvest was discussed, the 

Church designated Mr. Barlow as the contact person for the harvesting 

operation, and Mr. Jessop sent his own children to the harvest.
9 

F.3d 1196, 1201 (10th Cir. 2009). The term “volunteer” is commonly 

defined as an offer to work without solicitation, compulsion, constraint, or 

influence of another. Webster’s Third New International Dictionary 2564 

(1993); see also The American Heritage Dictionary of the English 

Language 1941-42 (5th ed. 2011) (defining “volunteer” as “[t]o give or 

offer to give voluntarily” and “voluntary” as “[d]one or undertaken of 

one’s own free will”). 

 As discussed above, the district court reasonably found that the 

children had not volunteered to gather pecans. Therefore, the food-bank 

exception does not apply.4

Paragon and Mr. Jessop criticize the use of dictionary definitions to 

interpret the word “volunteer,” asserting that the Supreme Court already 

interpreted the word in Alamo Foundation. This criticism is misguided. 

Alamo Foundation’s definition encompassed the same concept but did not 

address the term “volunteer” or refer to that term as it is used in the Fair 

Labor Standards Act. See Tony and Susan Alamo Found. v. Sec’y of Labor, 

471 U.S. 290, 295 (1985). In any event, we have concluded that Alamo 

 

4

 The Department of Labor cites 29 C.F.R. § 553.101, which defines 

the term “volunteer” as it is used in another statutory exception, 29 U.S.C. 

§ 203(e)(4)(A). That definition applies only to individuals who volunteer 

“for a public agency which is a State, a political subdivision of a State, or 

an interstate governmental agency,” 29 U.S.C. § 203(e)(4)(A). The parties 

agree that this definition does not apply here.
10 

Foundation does not preclude characterization of the children as 

employees. 

* * * 

We conclude that the children were “employees,” subjecting their 

employer to the requirements of the Fair Labor Standards Act. 

B. Who employed the children?

 Classifying the children as employees does not end the inquiry. 

Paragon and Mr. Jessop argue in two ways that even if the children had 

been employees, the employer would have been the Church or Mr. Barlow 

rather than Paragon: 

1. Paragon’s contract with the Ranch did not extend to the 

gathering of pecans from the ground; therefore, Paragon and 

Mr. Jessop did not employ the children. 

2. Mr. Barlow was an independent contractor; therefore, he alone 

was responsible for the children’s employment. 

1. Did the contract cover gathering pecans from the ground?

 First, Paragon and Mr. Jessop argue that the contract served only to 

obligate Paragon to harvest the pecans from the trees. Under this argument, 

the contract did not govern what happened after the pecans had been 

harvested from the trees. This argument, if credited, would relieve Paragon 

of responsibility for what the children did after the tree harvest. 

 The district court rejected this argument, finding that 

 the contract had obligated Paragon to harvest all of the pecans 

rather than just the pecans in the trees and 
11 

 the informal arrangement between the Ranch and the Church 

had ended when Paragon assumed contractual responsibility for 

the pecan harvest. 

We agree with the district court based on the text of the contract, the 

testimony of a Ranch representative, and Paragon’s receipt of profits from 

the sale of the fallen pecans.5

 

a. The Text of the Contract

 The contract obligated Paragon to manage the pecan groves and to 

bear the “[c]osts related to the nut gathering/harvesting operation.” 

Appellant’s App’x at 296-97. And the compensation provision stated only 

that “[t]he 2011 pecan crop [would] be sold,” with Paragon receiving 70% 

of the gross proceeds. Id. at 298. These provisions did not differentiate 

between pecans collected from the ground and from the trees. 

 Paragon and Mr. Jessop rely on the “costs” provision, arguing that 

the contract would not have singled out the “costs” related to the “nut 

gathering/harvesting operation” if gathering the pecans from the ground 

had constituted part of Paragon’s contractual obligations. 

 

5

 We need not decide the standard of review for this issue. The 

interpretation of an unambiguous contract is reviewed de novo, but the 

interpretation of an ambiguous contract is reviewed for clear error. See 

Edwards & Daniels Architects, Inc. v. Farmers’ Props., Inc., 865 P.2d 

1382, 1385 (Utah Ct. App. 1993) (citing Kimball v. Campbell, 699 P.2d 

714, 716 (Utah 1985)). The district court did not specify the approach that 

it was using. 
12 

This argument distinguishes between “harvesting” and “gathering.” 

The contract required Paragon to “harvest” the nuts, which Paragon and 

Mr. Jessop characterize as a reference to the collection of nuts from the 

trees. This characterization leads Paragon and Mr. Jessop to deny any 

contractual obligation to “gather” nuts, which they regard as a reference to 

the collection of nuts from the ground. For the nuts on the ground, Paragon 

and Mr. Jessop insist that their responsibilities had been limited to the 

payment of some of the gathering costs. 

Even if the costs provision had differentiated between “harvesting” 

and “gathering,” the provision had allocated the costs to Paragon for both 

harvesting and gathering. By assigning the contract’s costs to Paragon for 

both harvesting and gathering, the contract suggested that Paragon bore 

responsibility for both activities. And Paragon and Mr. Jessop identify 

nothing in the contract that would 

 restrict Paragon’s obligations to harvesting pecans from trees 

or 

 disclaim responsibility to gather pecans from the ground. 

Accordingly, the contract language suggests coverage of pecans collected 

from the ground as well as from the trees. 
13 

b. Testimony by Mr. Freeman 

 The district court could rely not only on the contract language but 

also on testimony by Mr. Norman Freeman, the Ranch representative who 

had dealt with Paragon. Mr. Freeman testified that 

 the contract had obligated Paragon to gather the pecans from 

the ground and ended the Ranch’s informal arrangement with 

the Church and 

 Mr. Jessop had known that Paragon was contractually obligated 

to harvest all of the pecans, including those that had fallen to 

the ground. 

Paragon and Mr. Jessop challenge Mr. Freeman’s testimony as internally 

inconsistent and in conflict with Mr. Barlow’s testimony. 

According to Paragon and Mr. Jessop, Mr. Freeman contradicted 

himself when he acknowledged that he had not objected after seeing 

children collect pecans. But Mr. Freeman clarified that he had assumed 

that the children were helping Paragon fulfill its contractual obligations. 

Paragon and Mr. Jessop also point to Mr. Freeman’s admission that 

he could not recall a specific discussion with Mr. Jessop about collecting 

the fallen pecans. But Mr. Freeman explained that he had regarded the 

contract as so clear that there would have been little reason to remind Mr. 

Jessop of Paragon’s obligation to collect the nuts from the ground. 

Paragon and Mr. Jessop also rely on testimony by Mr. Barlow, who 

stated that the Ranch’s informal arrangement with the Church had 

continued after Paragon took over the management of the grove. But the 
14 

district court did not believe Mr. Barlow, and we have little reason to 

question the court’s assessment of credibility. See United States v. 

Quaintance, 608 F.3d 717, 723 (10th Cir. 2010) (“[W]e generally grant 

‘great deference’ to a district court’s credibility assessments.” (quoting 

Wessel v. City of Albuquerque, 463 F.3d 1138, 1145 (10th Cir. 2006))). In 

our view, the district court did not clearly err in finding that the parties 

had understood the contract to include the harvesting of fallen pecans. 

c. Paragon’s Receipt of Profits

 The district court could also reasonably rely on the fact that Paragon 

had profited from the ground pecans. Those pecans were comingled with 

the other pecans and sold together, with Paragon receiving 70% of the total 

proceeds. Paragon and Mr. Jessop do not explain why they would receive 

proceeds from the sale of the fallen pecans if they had been excluded from 

the contract. 

* * * 

 The district court reasonably determined that the contract had 

required Paragon to collect the fallen pecans. Thus, the district court could 

reasonably find that the children had been helping Mr. Barlow, through his 

status with Paragon, to fulfill Paragon’s contractual obligations. 

2. Was Mr. Barlow an independent contractor? 

 Paragon and Mr. Jessop also characterize Mr. Barlow as an 

independent contractor, making his employment of the children his 
15 

responsibility rather than Paragon’s or Mr. Jessop’s.6

 We conclude that Mr. 

Barlow was an employee of Paragon, not an independent contractor;7

therefore, the children were also employees of Paragon. 

a. The Pertinent Factors 

 In determining whether an individual was an independent contractor 

or employee, we focus on the economic realities and the worker’s 

economic dependence on the business. Baker v. Flint Eng’g & Constr. Co., 

137 F.3d 1436, 1440 (10th Cir. 1998). The economic realities ordinarily 

turn on six factors: 

1. The degree of control exercised by the alleged employer over 

the worker, 

2. the worker’s opportunity for profit or loss, 

3. the worker’s investment in the business, 

4. the permanence of the working relationship, 

5. the degree of skill required to perform the work, and 

6. the extent to which the work is an integral part of the alleged 

employer’s business. 

 

6

 Mr. Barlow’s status as an independent contractor would not 

automatically preclude the children from being considered employees of 

Paragon and Mr. Jessop. See Boire v. Greyhound Corp., 376 U.S. 473, 481 

(1964); Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 237 

(5th Cir. 1973). 

7

 The district court did not decide whether Mr. Barlow had been an 

independent contractor, concluding instead that Mr. Barlow had been an 

agent of Paragon and Mr. Jessop under Utah agency law. But we may 

affirm the district court’s ruling on any ground supported by the record. 

Stillman v. Teachers Ins. & Annuity Ass’n Coll. Ret. Equities Fund, 343 

F.3d 1311, 1321 (10th Cir. 2003).
16 

Id. 

The overarching inquiry is based on the totality of the circumstances, 

and no single factor is dispositive. Johnson v. Unified Gov’t of Wynadotte 

Cty., 371 F.3d 723, 729 (10th Cir. 2004). In considering these 

circumstances, we review the district court’s underlying factual findings 

for clear error. Baker, 137 F.3d at 1441. But we regard the ultimate 

classification (employee or independent contractor) as a matter of law. Id.; 

Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 571 (10th Cir. 1994). 

b. Degree of Control

 The first factor involves the degree of Paragon’s control over Mr. 

Barlow. In evaluating this factor, we consider various considerations such 

as Mr. Barlow’s independence in setting his own work hours and other 

conditions and details of his work, the extent of Paragon’s supervision of 

Mr. Barlow, and the degree of Mr. Barlow’s ability to work for other 

employers. See Baker, 137 F.3d at 1441; Johnson, 371 F.3d at 729-30; 

Henderson, 41 F.3d at 570. 

 This factor indicates status as an independent contractor. Mr. Barlow 

was hired to manage the pecan grove, and he could set his own hours and 

determine how best to perform his job within broad parameters. Although 

Mr. Barlow periodically reported to Paragon and would occasionally 

request assistance, Paragon did not substantially supervise Mr. Barlow’s 

work. In addition, Mr. Barlow could work for other employers. For 
17 

example, he testified that he had engaged in flooring and plumbing work 

for other companies and had facilitated a similar nut-gathering 

arrangement between the Church and another nearby nut grove. 

 In our view, the evidence indicates that Paragon did not exercise 

substantial control over Mr. Barlow’s work. As a result, this factor 

supports classification of Mr. Barlow as an independent contractor rather 

than an employee. See Aimable v. Long & Scott Farms, 20 F.3d 434, 441 

(11th Cir. 1994) (“Control arises, we believe, when the farmer goes beyond 

general instructions, such as how many acres to pick in a given day, and 

begins to assign specific tasks, to assign specific workers, or to take an 

overly active role in the oversight of the work.”). 

c. Opportunity for Profit or Loss

 In evaluating the second factor, we consider whether Mr. Barlow had 

the ability to profit based on his performance. Such an ability is 

“consistent with the characteristics of being [an] independent 

businessm[a]n.” Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436, 1441 

(10th Cir. 1998). This factor indicates that Mr. Barlow was an employee 

rather than an independent contractor. 

 Mr. Barlow was paid only a flat fee for managing the pecan grove. 

Thus, he could not increase or decrease his profit based on how well he did 

his job. See id. (holding that this factor supported employee status because 

the workers had been paid at a fixed rate and had not incurred any risk of 
18 

loss); Dole v. Snell, 875 F.2d 802, 810 (10th Cir. 1989) (holding that this 

factor supported employee status because earnings had not depended on the 

workers’ “judgment or initiative”). 

d. Investment in the Business

 The third factor is the extent of Mr. Barlow’s investment in the 

business. The mere fact that workers supply their own tools or equipment 

does not establish status as independent contractors; rather, the relevant 

“investment” is “the amount of large capital expenditures, such as risk 

capital and capital investments, not negligible items, or labor itself.” Dole, 

875 F.2d at 810. 

To analyze this factor, we compare the investments of the worker and 

the alleged employer. Baker, 137 F.3d at 1442. This factor points heavily 

to status as an employee. The supplies and equipment were provided by the 

Ranch, not Mr. Barlow.8

 His only work-related expenses were for travel to 

and from the pecan farm. By contrast, Paragon bore the contractual 

obligation to pay for equipment maintenance, fertilizer, pest control, and 

utilities. 

 Paragon and Mr. Jessop point out that Mr. Barlow supplied buckets 

for the families that had not brought buckets. But this expense was 

negligible. We consider Mr. Barlow’s negligible expense as a factor that 

 

8

 Mr. Barlow stated that he had provided his truck to manage the 

harvest. But he conceded that he had later obtained reimbursement from 

Paragon. 
19 

strongly supports Mr. Barlow’s status as an employee rather than an 

independent contractor. 

e. Permanence of the Working Relationship

 The fourth factor addresses the permanence of Mr. Barlow’s 

relationship with Paragon. For purposes of this factor, “‘[i]ndependent 

contractors’ often have fixed employment periods and transfer from place 

to place as particular work is offered to them, whereas ‘employees’ usually 

work for only one employer and such relationship is continuous and of 

indefinite duration.” Dole v. Snell, 875 F.2d 802, 811 (10th Cir. 1989). 

This factor weighs heavily in favor of employee status. 

 Paragon and Mr. Jessop contend that Mr. Barlow was employed 

temporarily because he was hired for only one harvesting season at a time. 

But “‘[m]any seasonal businesses necessarily hire only seasonal 

employees, [and] that fact alone does not convert seasonal employees into 

seasonal independent contractors.’” Baker v. Flint Eng’g & Constr. Co., 

137 F.3d 1436, 1442 (10th Cir. 1998) (quoting Sec’y of Labor v. Lauritzen, 

835 F.2d 1529, 1537 (7th Cir. 1987)) (alterations in original). Thus, even 

when the relationship is short, the worker may be considered an employee 

when the relationship is shortened because of the job’s “intrinsic nature” 

rather than the worker’s “choice or decision.” Id. 

 Mr. Barlow was hired for a relatively short time period (the harvest 

season). But his employment was permanent for the duration of each 
20 

harvest season. This factor supports Mr. Barlow’s status as an employee 

rather than an independent contractor. See Lauritzen, 835 F.2d at 1537 

(“[H]owever temporary the relationship may be it is permanent and 

exclusive for the duration of that harvest season.”).9

 

f. Degree of Skill Required to Perform the Work

 The fifth factor addresses the degree of skill that Mr. Barlow needed 

for the job. For this factor, we consider whether the job contains a 

“requirement of specialized skills”; if such a requirement exists, the 

worker is more likely to be considered an independent contractor. Dole v. 

Snell, 875 F.2d 802, 811 (10th Cir. 1989). These specialized skills are 

distinct from general “‘occupational skills’” that “‘any good employee in 

any line of work must [have].’” Id. (quoting Lauritzen, 835 F.2d at 1537). 

This factor supports consideration of Mr. Barlow as an employee rather 

than an independent contractor. 

 Mr. Barlow testified that his job had included attending to the dayto-day operations of the pecan grove, providing security, performing 

general maintenance (such as watering, pruning, and trimming the trees), 

and cleaning debris out of the nuts. Paragon and Mr. Jessop do not identify 

any specialized skills needed for these tasks. As a result, this factor also 

supports classification of Mr. Barlow as an employee rather than an 

 

9

 The temporary nature of the relationship was caused not by Mr. 

Barlow’s choice to seek work elsewhere, but by the seasonal nature of the 

harvest. 
21 

independent contractor. See id. (“The lack of the requirement of 

specialized skills is indicative of employee status.”) 

g. Integral Part of the Employer’s Business

 The last factor turns “on whether workers’ services are a necessary 

component of the business.” Baker v. Flint Eng’g & Constr. Co., 137 F.3d 

1436, 1443 (10th Cir. 1998). If Mr. Barlow’s work was essential to 

Paragon’s business, this factor would support consideration of Mr. Barlow 

as an employee of Paragon. 

The district court found that “Paragon’s usual business is 

construction,” which the Department of Labor does not dispute. Perez v. 

Paragon Contractors Corp., 233 F. Supp. 3d 1234, 1237 (D. Utah 2017). 

Because Mr. Barlow’s management of the pecan grove was not integral to 

the bulk of Paragon’s business, this factor supports consideration of Mr. 

Barlow as an independent contractor. 

 But this factor carries little weight here because of the unique nature 

of Mr. Barlow’s work. That work was not essential to Paragon’s overall

business, but his management of the pecan grove was essential to 

Paragon’s pecan-harvesting business. See Sec’y of Labor v. Lauritzen, 835 

F.2d 1529, 1537-38 (7th Cir. 1987) (concluding that for a pickle farm, 

picking the pickles is an integral part of the business, supporting 

classification of the pickers as employees). Accordingly, this factor 

provides only marginal support for status as an independent contractor. 
22 

* * * 

 Considering the totality of the circumstances, we conclude that Mr. 

Barlow depended economically on Paragon’s business “for the opportunity 

to render service” and was not “in business for [himself].” Baker v. Flint 

Eng’g & Constr. Co., 137 F.3d 1436, 1443 (10th Cir. 1998). Therefore, Mr. 

Barlow was an employee, not an independent contractor, of Paragon. 

3. Were the children employees of Paragon and Mr. Jessop? 

 Because Mr. Barlow was employed by Paragon, the children would 

also be considered employees of Paragon. See Beliz v. W.H. McLeod & 

Sons Packing Co., 765 F.2d 1317, 1327 (5th Cir. 1985) (noting that if the 

alleged contractor were considered an employee of the defendant, “it would 

necessarily follow” that the contractor’s employees would also be 

considered employees of the defendant). 

* * * 

We therefore conclude that 

 Paragon had employed the children and 

 the district court correctly concluded that Paragon and Mr. 

Jessop had violated the 2007 injunction by employing the 

children. 

III. Were the district court’s sanctions permissible? 

 Paragon and Mr. Jessop also challenge the contempt sanctions. We 

agree with Paragon and Mr. Jessop regarding the appointment of a special 
23 

master. But we reject the challenge regarding the order to pay into the 

fund. 

A. What is the standard of review? 

The district court has “inherent power to enforce compliance with 

[its] lawful orders through civil contempt.” Shillitani v. United States, 384 

U.S. 364, 370 (1966). In exercising this power, the court enjoys broad 

discretion. Rodriguez v. IBP, Inc., 243 F.3d 1221, 1231 (10th Cir. 2001). 

We accordingly review the court’s imposition of sanctions for an abuse of 

discretion. Id. The court abuses its discretion by committing an error of 

law; as a result, we engage in de novo review on matters of law. 

Consumers Gas & Oil, Inc. v. Farmland Indus., Inc., 84 F.3d 367, 370 

(10th Cir. 1996). 

B. What are the purposes of civil-contempt sanctions? 

 Civil-contempt sanctions may be imposed only 

 “‘to compel or coerce obedience to a court order’” or 

 “‘to compensate the contemnor’s adversary for injuries 

resulting from the contemnor’s noncompliance.’” 

O’Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d 1204, 1211 (10th 

Cir. 1992) (quoting Shuffler v. Heritage Bank, 720 F.2d 1141, 1147 (9th 

Cir. 1983)). 

Here, the district court imposed both types of sanctions. First, the 

court imposed a coercive sanction, appointing a special master to monitor 
24 

compliance with the injunction. Second, the court imposed a compensatory 

sanction, ordering Paragon and Mr. Jessop to pay $200,000 into a fund to 

compensate the children for their labor. Paragon and Mr. Jessop challenge 

both sanctions. 

C. Was appointment of a special master permissible?

 First, Paragon and Mr. Jessop argue that the district court exceeded 

its authority by appointing a special master to monitor compliance with the 

injunction. We agree. 

 The district court can impose coercive sanctions designed to compel 

obedience to a court order. But because coercive sanctions seek to avoid 

the “‘harm threatened by continued contumacy,’” the sanctions can remain 

only until the contemnor complies with the order. O’Connor v. Midwest 

Pipe Fabrications, Inc., 972 F.2d 1204, 1211 (10th Cir. 1992) (quoting 

United States v. United Mine Workers of Am., 330 U.S. 258, 304 (1947)). 

Thus, the sanctioned party must be able to immediately end the sanction by 

complying with the court order. See id. at 1211-12; see also Shillitani v. 

United States, 384 U.S. 364, 370-71 (1966) (noting that a coercive sanction 

must give the contemnor an “opportunity to purge himself of contempt”). 

 The district court based its sanction on the risk that Paragon and Mr. 

Jessop might again employ children. The court stressed three facts: 

1. Paragon and Mr. Jessop had begun profiting from child labor on 

the Ranch shortly after getting caught using child labor in the 

construction industry. 
25 

2. Paragon and Mr. Jessop had tried to conceal their violation of 

the injunction by telling employees to lie, hiding children 

during inspections, and failing to maintain proper records. 

3. Paragon and Mr. Jessop had flouted subpoenas and testified 

untruthfully. 

 The district court was understandably frustrated with what it saw as 

repeated and willful violations by Paragon and Mr. Jessop. But no evidence 

existed regarding Paragon’s employment of children at the time of the 

district court’s sanction, for Paragon had ended its relationship with the 

Ranch years earlier.10 The sanction therefore did not comply with the 

requirement of “continued contumacy.” 

Because there was no evidence of child labor at the time of the 

sanction, there was nothing that Paragon or Mr. Jessop could do to bring 

themselves into compliance. As a result, Paragon and Mr. Jessop had no 

way to purge themselves of contempt. See O’Connor v. Midwest Pipe 

Fabrications, Inc., 972 F.2d 1204, 1211-12 (10th Cir. 1992). 

* * * 

 

10 The district court stated that “[d]efendants [had] left the court with 

no assurance that they [were] in compliance with its order or that they 

[would] . . . comply in the future.” Perez v. Paragon Contractors Corp., 

233 F. Supp. 3d 1234, 1240 (D. Utah 2017). This statement suggests that 

the district court might have believed that Paragon and Mr. Jessop were 

currently noncompliant. But the court pointed to no evidence of current 

noncompliance, and a factfinder cannot speculate about a current violation 

without evidence. See Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 

511, 521 (10th Cir. 1987). 
26 

 A coercive sanction cannot be imposed on a party that is currently in 

compliance just to ensure future compliance. Accordingly, the district 

court abused its discretion in appointing a special master to monitor 

compliance.11

D. Was the compensatory sanction permissible? 

 Paragon and Mr. Jessop also challenge the district court’s 

compensatory sanction. The court ordered Paragon and Mr. Jessop to 

compensate the children by paying $200,000 into a fund managed by the 

Department of Labor. The Department would then allow the children and 

their representatives to present evidence of their labor and obtain 

compensation from the fund. 

 The district court can impose a sanction “‘to compensate the 

contemnor’s adversary for injuries resulting from the contemnor’s 

noncompliance[.]’” O’Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d 

1204, 1211 (10th Cir. 1992) (quoting Shuffler v. Heritage Bank, 720 F.2d 

1141, 1147 (9th Cir. 1983)) (alteration in original); see McComb v. 

Jacksonville Paper Co., 336 U.S. 187, 193 (1949) (noting that the district 

court may order contemnors “to pay the damages caused by their violations 

of the decree”). The amount of the compensatory sanction must be based 

upon the “‘actual losses sustained as a result of the contumacy.’” 

 

11 We do not address whether the district court could have modified the 

injunction to require a special master. 
27 

O’Connor, 972 F.2d at 1211 (quoting Perfect Fit Indus. v. Acme Quilting 

Co., 646 F.2d 800, 810 (2d Cir. 1981)). Therefore, a direct causal 

relationship must exist between the amount of damages and the violation of 

an injunction. See id. This question of causation underlies the parties’ 

dispute over the sanction. 

 We have not articulated a precise test for causation in this context. 

But we are guided by the Supreme Court’s recent opinion in Goodyear Tire 

& Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017). Goodyear involved a 

district court’s order requiring an offending party to pay the other party’s 

legal fees. 137 S. Ct. at 1183-84. The Supreme Court held that the sanction 

must be limited to the “fees the innocent party incurred solely because of 

the misconduct—or put another way, to the fees that party would not have 

incurred but for the bad faith.” Id. at 1184. The Court characterized this 

causal connection as a “but-for test.” Id. at 1187. 

 Paragon and Mr. Jessop deny a causal connection between the 

sanction and the violation of the injunction.12 This distinction, according to 

Paragon and Mr. Jessop, is reflected in two different statutory violations: 

(1) employment of child labor under oppressive conditions and (2) 

violation of minimum-wage requirements. See Gemsco, Inc. v. Walling, 324 

 

12 In their reply brief, Paragon and Mr. Jessop argue that they lacked 

notice that violation of the 2007 injunction could result in a fund to pay 

child laborers. But this argument did not appear in the opening brief. As a 

result, we decline to consider this argument. Bronson v. Swenson, 500 F.3d 

1099, 1104 (10th Cir. 2007). 
28 

U.S. 244, 261-62 (1945) (noting that the child-labor provisions of the Fair 

Labor Standards Act are independent of the minimum-wage provisions). 

Paragon and Mr. Jessop argue that the compensatory sanction 

effectively served as a sanction for the failure to pay minimum wages to 

the children. But the injunction did not prohibit Paragon and Mr. Jessop 

from violating the minimum-wage provisions; the injunction served only to 

prohibit violations of the child-labor provisions. Because the sanction must 

be causally related to violation of the injunction, Paragon and Mr. Jessop 

argue that an order to pay unpaid wages serves as an impermissible 

sanction for a child-labor violation. We disagree. 

 Paragon and Mr. Jessop point out that unpaid wages are not 

necessarily the direct result of a child-labor violation. After all, if Paragon 

and Mr. Jessop had paid the children minimum wage for their work, the 

injunction against oppressive child labor would still have been violated. 

 But we are not facing such a case. Here, the unpaid wages were the 

direct result of the child-labor violation. If Paragon and Mr. Jessop had not 

employed the children, the children would not have performed unpaid 

labor. In other words, the violation of the injunction (employment of child 

labor under oppressive conditions) was the “but-for” cause of the 

children’s unpaid labor. 

Paragon and Mr. Jessop essentially assume that the damages from a 

child-labor violation and the damages from a minimum-wage violation are 
29 

mutually exclusive. This approach posits that because unpaid wages 

constitute the damages from a minimum-wage violation, the unpaid wages 

cannot also constitute damages from a child-labor violation. 

But these damages are not mutually exclusive. In this case, the 

children’s unpaid labor resulted directly from employment of the children; 

accordingly, the “‘actual losses sustained as a result of the [child-labor 

violation]’” include the value of the children’s uncompensated work.13

O’Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d 1204, 1211 (10th 

Cir. 1992). 

 For these reasons, we conclude that the district court acted within its 

discretion in ordering Paragon and Mr. Jessop to pay into a fund to 

compensate the children for their work. 

IV. Conclusion

 We affirm in part and reverse in part. 

We affirm the district court’s conclusion that Paragon and Mr. Jessop 

violated the 2007 injunction prohibiting the use of oppressive child labor. 

 

13 Paragon and Mr. Jessop argue that unpaid wages served as an 

impermissible sanction because such wages could be sought in a separate 

proceeding against Paragon and Mr. Jessop for minimum-wage violations. 

But the mere fact that certain damages could also be recovered in a 

separate proceeding does not prevent the district court from ordering the 

same payment as a sanction for contempt. See McComb v. Jacksonville 

Paper Co., 336 U.S. 187, 194 (1949) (approving the district court’s 

contempt sanction, which had ordered payment of damages, noting that 

“[t]he fact that another suit might be brought to collect the payments is, of 

course, immaterial”). 
30 

The children were not volunteers, and Paragon and Mr. Jessop employed 

the children. 

We further affirm the district court’s order for Paragon and Mr. 

Jessop to pay into a fund to compensate the children. In our view, this 

order constituted a permissible compensatory sanction. 

But we reverse the district court’s appointment of a special master to 

monitor compliance with the injunction. This appointment exceeded the 

court’s authority to impose coercive sanctions.