UPDATE: Appeals Court Overturns Lower Court, Says Florida Citrus Company is NOT A Joint Employer with Farm Labor Contractor

By: Gregory Blueford

Yesterday, the Eleventh Circuit Court of Appeals reversed a federal trial court decision that a Florida citrus grower was a joint employer for the purposes of its hired farm labor contractor’s H-2A employees’ (“Plaintiffs”) common law breach of contract claim only.

As reported here, last year, a federal trial court ruled that Consolidated Citrus LP (“Consolidated Citrus”) was a joint employer of its hired farm labor contractor’s, Ruiz Harvesting, Inc.’s (“RHI”) H-2A employees because Consolidated Citrus extensively controlled the manner and means by which the harvesters accomplished their work. As a brief refresher, Consolidated Citrus would, amongst other things, direct RHI on how much fruit should be harvested from a particular grove when the fruit was ready (as determined solely by Consolidated Citrus), issue ID badges to all RHI harvesters for the harvesters to clock in and out of a time-tracking device owned and operated by Consolidated Citrus, mandate that employees be paid by direct deposit, and conduct random audits of RHI’s recordkeeping. Plaintiffs sued both Consolidated Citrus and RHI for unpaid wages under the Migrant and Seasonal Agricultural Protection Act (“MSPA”), Fair Labor Standards Act (“FLSA”), common law breach of contract, and state violations of minimum wage law. RHI was later dismissed after settling their claims separately with Plaintiffs.

Generally speaking, the joint employment test under the federal common law, which applies to H-2A workers, focuses on the alleged employer’s right to control the manner and means by which the alleged employee accomplishes their work. The court will analyze several factors, including, but not limited to, the source of the equipment needed, the location of the work, the extent of the hired party’s discretion over when and how long to work, and the method of payment. These are just a few factors and the Court will take a look at the entire situation as a whole to make a joint employer determination.

Here, the Eleventh Circuit reiterated that the common law test hinges largely on whether the alleged joint employer has "control" over the workers claiming to be its employees, saying it is clear that Ruiz Harvesting, and not Consolidated Citrus had and “enjoyed” the right to control how the pickers worked. Specifically, the Eleventh Circuit said the practices that the trial court considered in its joint employer analysis, namely, the workers' clocking in and out, their approximate start times and production goals, Consolidated Citrus’ officials conducting quality control in the fields, “serve to regulate only the ends rather than the manner and means of work" and had no effect on the workers’ “moment-to-moment” tasks. While these considerations may well bear on the FLSA’s definition of control, the court ruled that those considerations are not determinative under the common law.

This ruling vacates a $195,000 judgment the workers won in June 2017 against Consolidated Citrus. While the Eleventh Circuit previously affirmed a ruling that Consolidated Citrus jointly employs the workers under the FLSA, the workers only won class certification on their contract breach claims, meaning they have to press their wage claims against Consolidated Citrus individually.


As we have stated in our many eBlasts on this topic, the joint employer test is a complicated legal theory that, increasingly, companies can get caught in due to their lack of understanding of the joint employer factors and the failure to maintain a “disciplined firewall” between themselves and their labor contractor. If you have any questions regarding joint employment and its potential impact on your business, contact The Saqui Law Group.

NLRB Announces New Regional Case Handling Procedure

By: Jizell Lopez

On Monday, the General Counsel’s Office of the National Labor Relations Board (“NLRB”) announced in a memorandum that it is moving forward with plans to immediately change how the board processes complaints from workers, unions, and businesses. The majority of the changes are aimed to streamline how the agency’s regional office will now handle both union organizing drives and lawsuits alleging federal labor law violations.

The memorandum predominantly focused on a new plan to improve the NLRB’s regional offices’ decision writing process and to make the process more efficient. Previously, when there was a union organizing drive and a party challenged an aspect of that union campaign, the region where the organizing drive originated would settle the dispute. Now, volunteer decision-writers in four districts overseeing the NRLB's 26 regional offices will draft most of the decisions, although regions will have some discretion to decide disputes themselves. The Board’s Division of Operations will choose the decision-writers from a pool of field workers and they will serve a one-year term. The NLRB believes this change will decrease some of the busier regions’ case load and make it even among all of the regions, noting that just four regional offices (Regions 5, 19, 21 and 28) handled approximately a third of the representation cases.

Further, the NLRB has revised how the Division of Advice in the General Counsel’s Office can respond to regions requesting advice about how to specifically apply the National Labor Relations Act. Previously, regions were required to submit burdensome lengthy documents to solicit advice. Now, regions can ask for advice by sending memos, “as simple as an email.” The board will also start posting ethics memoranda to an intra-agency forum and give lower level regional officials a greater say in how to handle certain "mundane" case decisions, according to the memo.

UPDATE: NLRB Seeks Comment on Whether Employees Can Use Company Emails for Union Business

By: Gregory Blueford

Last year, Purple Communications (“Purple”), a video provider for deaf and hard-of-hearing individuals, appealed a 2014 NLRB ruling that held employees who already have access to their employer’s email system are permitted to use the email system for protected union-related activities because email is the premier platform for “worker speech” in the modern workplace. Purple appealed that ruling to the Ninth Circuit which will hold a hearing on the issue in October 2018.

However, three Trump NLRB appointees have approved an invitation for stakeholders in the decision to file briefs on whether to “adhere to, modify or overrule [the] Purple Communications [decision].” The invitation asks stakeholders to answer several questions, including what other standard they would like to see the Board adopt should it overturn Purple, whether the NLRB should rule workers, who would otherwise struggle to communicate with each other, may continue to use company email systems for union business, and whether the NLRB should apply different standards to other media, such as text messages sent on employer-owned equipment.

As expected, NLRB Democrats Mark Gaston Pearce and Lauren McFerran slammed the invitation in dissents. Pearce, who was part of the Purple majority (and who’s second term expires on August 27, 2018), likened the invitation to “giving a golfer a mulligan simply because he or she wants to swing another club.” McFerran argued that there have not been any adverse judicial decisions that might warrant revisiting the decision nor has there been any empirical evidence, or even good reason to suspect, that the Purple decision has proven problematic in practice, as predicted by the critics of that holding.

You can read the NLRB press release here. Briefs must be submitted on or before September 5, 2018.

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