To paraphrase the lyrics of the classic nursery song, Old MacDonald had a farm and on that farm he had a cow – and a duck, horse, and chicken (e-i-e-i-o). And, of course, to tend to that livestock Old MacDonald had to have farm workers, and those farm workers had to be paid. But were those farm workers, like most other employees, entitled to overtime pay under federal law when they worked more than 40 hours a week? Yes – under some circumstances, the Eleventh Circuit Court of Appeals recently held. Ramirez v. Statewide Harvesting & Hauling, LLC, 2021 U.S. App. LEXIS 15215 (11th Cir. May 21, 2021).
One of the lesser-known overtime, and in some cases minimum wage, exemptions to the Fair Labor Standards Act (FLSA) is the “agricultural” exemption. That exemption, found in 29 U.S.C. § 213(b)(12), applies to “any employee employed in agriculture” and includes primary and secondary definitions. The primary definition of agriculture involves what we envision when we think of farming: “the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities . . . , [and] the raising of livestock, bees, fur-bearing animals, or poultry[.]” Id. § 203(f). The secondary definition pulls in in a broad variety of activities related to the primary farming activities, if they are “performed by a farmer or on a farm as an incident to or in conjunction with [primary] farming operations, including preparation for market [and] delivery to storage or to market or to carriers for transportation to market.” Id. This secondary definition includes important – and in the Statewide case decisive – words: “performed by a farmer or on a farm.”
Statewide harvests fruit from about 1,500 fields on multiple farms across Florida, hauling it to packinghouses and processing plants. Most of its harvesting employees are temporary foreign guest workers through the federal H-2A program. Under that program, labor contractors must provide harvest workers with basic necessities such as housing, meals or kitchen facilities, and laundry facilities. In some cases, the time workers spend traveling between the fields and the housing facilities provided by Statewide is mere minutes, but in other cases could be as much as two hours. As part of its contractual and legal obligations, Statewide provides the workers with kitchen facilities and with transportation to grocery stores and banks. These trips for necessities are provided by Statewide crew leaders (field supervisors) on a weekly basis and last approximately four hours a week.
Plaintiff Ramirez was a crew leader who, along with another crew leader, sued the company alleging they were entitled to unpaid overtime compensation for the time spent driving the harvest workers on these trips to the grocery store, bank, etc. In response, Statewide claimed that the plaintiffs were exempt from overtime under the agricultural exemption. The trial court found for the employees, concluding that the exemption did not apply because the necessities trips were not performed “by a farmer or on a farm.” The company appealed and the Eleventh Circuit affirmed the judgment for the employees.
The Eleventh Circuit first noted that the necessities trips clearly did not fall under any of the farming activities set forth in the primary definition of agriculture and therefore the company had the burden of proving that the trips fell under the secondary definition. The definition of “performed . . . on a farm,” added the Court of Appeals, includes only those “activities performed within the geographical area that constitutes a farm.” Here, the necessities trips took place entirely away from any of the farms being harvested, beginning and ending at the harvest workers’ off-site housing facilities – facilities that in some cases were hours away from the fields being harvested. Moreover, the language of the statute requires that the secondary activities be performed on “a” farm, meaning a singular farm. Here, the workers were assigned to work on multiple farms across Florida and because the necessities trips were not associated with any particular farm, the “work is separate from the agricultural activities themselves.” Accordingly, the Eleventh Circuit concluded that the agricultural exemption was inapplicable to the time spent on these trips and, when the plaintiffs worked more than 40 hours per week, they were entitled to overtime pay for the driving time.
If you have any questions about the agricultural exemption or any other wage and hour issue, please contact the Jackson Lewis attorney(s) with whom you regularly work.