"As the season for sweet onions ends, another onion farm labor dispute begins," observes Judge B. Avant Edenfield of the Southern District of Georgia in a new opinion, commenting upon the flurry of FLSA lawsuits filed in recent years in the American Southeast arising out of labor conditions at large farming concerns utilizing immigrant workers. Judge Edenfield’s opinion, in addition to tackling common FLSA litigation issues such as conditional certification of a collective action and amendment of Plaintiffs’ complaint, also addresses and rejects a novel claim brought by American Plaintiffs alleging discrimination in violation of 42 U.S.C. § 1981. Tomason v. Stanley, 2013 U.S. Dist. LEXIS 148932 (S.D. Ga. Oct. 16, 2013).

The group of American citizen Plaintiffs — some black, some white, and some Hispanic — claimed that the farm’s failure to pay them the wage rate paid to Mexican farm workers under the terms of the H2-A visa program through which the latter worked violated Section 1981’s prohibition against discrimination based on race or alienage. Because Plaintiffs’ claims were based on their national original (American), not their varied races, and because Section 1981 does not protect American citizens from discrimination based on their citizenship status under the "alienage" provision, the Court held that Plaintiffs claims were legally deficient. Further, "a claim of alienage discrimination by Americans, in America, dies on the proverbial vine no matter the facts pled."

FLSA Plaintiffs and their counsel continue to pursue new theories of recovery under all available statutes. Employers must continue to carefully review all wage and hour policies and practices.