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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12866 ________________________
D.C. Docket No. 2:10-cv-00542-MEA-MRM
GAUDENCIO GARCIA-CELESTINO, individually and on behalf of all other persons similarly situated, RAYMUNDO CRUZ-VICENCIO, individually and on behalf of all other persons similarly situated, RAUL ISMAEL ESTRADA-GABRIEL, individually and on behalf of all other persons similarly situated, DANIEL FERRO-NIEVES, individually and on behalf of all other persons similarly situated, JOSE MANUEL FERRO-NIEVES, individually and on behalf of all other persons similarly situated, et al.,
Plaintiffs - Appellees,
versus
RUIZ HARVESTING, INC.,
Defendant,
CONSOLIDATED CITRUS LIMITED PARTNERSHIP,
Defendant - Appellant. Case: 17-12866 Date Filed: 08/02/2018 Page: 2 of 37
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(August 2, 2018)
Before TJOFLAT and ROSENBAUM, Circuit Judges, and UNGARO, * District Judge.
ROSENBAUM, Circuit Judge:
The English language contains many examples of homonyms—“words that
have the same sound and often the same spelling but differ in meaning . . . .” The
American Heritage Dictionary of the English Language 843 (5th ed. 2011). The
words “letter” (a symbol in the alphabet or a note) and “bark” (a dog’s cry or the
outside covering of a tree trunk), for example, both fit the bill (as does “bill,” for
that matter).
But the language of the law has its share of homonyms, too, and in this case
we confront a couple of subtle ones. Specifically, this case turns on the difference
in meaning between the term “employer” under the Fair Labor Standards Act, 29
U.S.C. § 203(d) (“FLSA”), and that same term under the general common law.
Both definitions require us to ask how much “control” Defendant-Appellant Citrus
Consolidated Limited Partnership (“Consolidated Citrus” or “the company”)
* Honorable Ursula Ungaro, United States District Judge for the Southern District of Florida, sitting by designation.
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exerted over a group of farm workers who performed labor on Consolidated
Citrus’s groves. But the answer to that question depends, in turn, on the meaning
of “control,” which is also a legal homonym. Like “employer,” it also has different
meanings under the FLSA and the common law.
Plaintiffs-Appellees are migrant workers in the United States under the
federal government’s H-2A visa program. Ruiz Harvesting, Inc. (“Ruiz
Harvesting”)—a farm-labor contractor and a separate entity from Defendant-
Appellant Consolidated Citrus—hired Plaintiffs to pick fruit at Consolidated
Citrus’s groves. Then, apparently without Consolidated Citrus’s knowledge, Ruiz
Harvesting forced Plaintiffs to kick back a portion of their paychecks under threat
of deportation.
Based on these circumstances, Plaintiffs sued Ruiz Harvesting, Basiliso Ruiz
(the owner of Ruiz Harvesting), and Consolidated Citrus for violations of the
FLSA and for breach of contract. Both Ruiz Harvesting and Ruiz settled with
Plaintiffs and ceased to be parties to this lawsuit. As for Consolidated Citrus, the
district court held a bench trial and found it liable for both causes of action.
Then this case made its first appearance before us. Garcia-Celestino v. Ruiz
Harvesting, Inc., 843 F.3d 1276 (11th Cir. 2016) (“Garcia-Celestino I”). We
upheld Consolidated Citrus’s liability on the FLSA claim, but we remanded the
matter to the district court on the breach-of-contract claim. We explained that the
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district court had mistakenly applied the definition of “employer” from the FLSA
in determining whether Consolidated Citrus was a “joint employer” for purposes of
resolving the breach-of-contract claim. See id. at 1284. Instead, we noted, that
claim depends on the definition of “employer” under general common-law
principles. See id. at 1289-90. So we remanded the case to the district court to
determine whether Consolidated Citrus was an “employer” under the common-law
definition of the term. Id. at 1293.
On remand, the district court again concluded that Consolidated Citrus was
an “employer” for purposes of the breach-of-contract claim. Consolidated Citrus
challenges that determination.
Our review of this case reveals that some confusion appears to exist
concerning the practical ways in which the definitions of “employer” under the
FLSA and of that same term under general common-law principles differ. So we
take this opportunity to clarify that area of the law. And once we apply the
common-law definition here, we conclude that Consolidated Citrus is not a joint
employer for purposes of Plaintiffs’ breach-of-contract claim since the company is
not an “employer” under the common-law definition of that term. We therefore
vacate the judgment of the district court.
I. BACKGROUND
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We start with the relevant factual background, which we take from the
district court’s factual findings entered after a bench trial.
Between 2007 and 2009, Plaintiffs worked as manual laborers picking fruit
at Consolidated Citrus’s Florida groves, though, as we have noted, Consolidated
Citrus did not hire Plaintiffs. 1 Rather, Ruiz Harvesting did.
We pause to explain how that situation arose. As Mexican nationals,
Plaintiffs received clearance to work in the United States through the federal
government’s H-2A visa program, which allows employers to hire foreign
agricultural workers on a temporary basis. Under the program, employers must
submit to the Department of Labor an application commonly referred to as a
“clearance order” detailing the terms and conditions of their prospective workers’
employment. By federal regulation, the clearance order becomes the employees’
work contract by default if the employer does not draw up a separate contract for
them. See 20 C.F.R. § 655.122(q) (2016).2
Although Consolidated Citrus hired some of its laborers directly, it also
engaged contractors to hire others. Ruiz Harvesting was one such contractor. Ruiz
Harvesting recruited Plaintiffs, submitted clearance orders to the Department of
Labor on their behalves, and ultimately hired them for work in Consolidated 1 Two different growing seasons are at issue here: 2007-08, and 2008-09. Plaintiffs also worked during the 2009-10 growing season but dropped all claims pertaining to that season earlier in this litigation. 2 The relevant regulation appeared under a different section number prior to 2016.
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Citrus’s groves. For work contracts, Ruiz Harvesting and Plaintiffs relied on only
their clearance orders for each year at issue.
As for Consolidated Citrus, it had no role in deciding how much Ruiz
Harvesting’s workers would be paid. Rather, Consolidated Citrus simply paid
Ruiz Harvesting for its total fruit production, and Ruiz Harvesting then determined
payments to Plaintiffs.
But because Consolidated Citrus required all workers to be hired through the
H-2A program, Ruiz Harvesting had to comply with a number of federal
regulations governing the minimum pay its workers would receive. As relevant
here, even though Ruiz Harvesting chose to pay its workers on a “piece-rate” basis,
meaning a fixed rate for every container of fruit they picked, federal regulations
still required each worker to receive a minimum amount each pay period. So if a
worker’s piece-rate earnings fell below the federally mandated minimum, Ruiz
Harvesting had to pay that minimum amount, anyway.
In 2010, Plaintiffs brought suit alleging, among other things, violations of
the FLSA and breach of contract. For starters, Plaintiffs sued Ruiz Harvesting and
Ruiz, asserting that they forced the workers to pay them illegal kickbacks that
impermissibly reduced the workers’ take-home pay. 3 More specifically, Plaintiffs
3 Upon Plaintiffs’ motion, the district court certified a plaintiff class of all H-2A workers employed by Ruiz Harvesting during the applicable years. But the court certified the class solely
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averred, whenever a worker’s piece-rate earnings fell below the federal minimum,
Ruiz Harvesting paid the worker in full but then demanded repayment of the
portion it had supplemented. To extract the cash kickback payments, Plaintiffs
alleged, Ruiz Harvesting officials often threatened the workers with deportation.
This occurred despite the fact that Consolidated Citrus established a
thorough auditing process to monitor Ruiz Harvesting’s finances.
Based on the theory that Consolidated Citrus and Ruiz Harvesting were
“joint employers” under the law, Plaintiffs also named Consolidated Citrus as a
defendant in their lawsuit, contending the company was equally liable for Ruiz
Harvesting’s kickback scheme. Plaintiffs eventually settled with both Ruiz
Harvesting and Ruiz.
Then they proceeded to trial against only Consolidated Citrus. The district
court issued findings of fact and conclusions of law following a six-day bench trial.
Ultimately, the court determined that Consolidated Citrus was a joint employer for
purposes of both the breach-of-contract and FLSA claims. Based on these
conclusions, the court found Consolidated Citrus liable for both claims.
Consolidated Citrus appealed, and a panel of this court affirmed in part and
reversed in part. Garcia-Celestino I, 843 F.3d at 1295. We affirmed the district
for the breach-of-contract claim (and one other state-law claim no longer at issue), leaving the named plaintiffs to proceed individually on the FLSA claim.
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court’s conclusion that Consolidated Citrus was a joint employer under the FLSA
and therefore upheld Consolidated Citrus’s liability under that statute. Id. at 1294-
95. But we concluded that the district court used the wrong legal standard to
determine whether Consolidated Citrus was a joint employer for purposes of the
breach-of-contract claim. Rather than the FLSA’s “economic dependency” test,
we explained that the district court should have applied the definition of
“employer” found in the common law of agency. Id. at 1295.
On remand, the district court analyzed its prior factual findings under the
common-law definition of “employer” and once again determined that
Consolidated Citrus was a joint employer for purposes of the breach-of-contract
claim. Consolidated Citrus now appeals.
II. STANDARD OF REVIEW
On review after a bench trial, we accept all of the district court’s factual
findings unless they are clearly erroneous, but we consider legal issues de novo.
Id. at 1284 n.4 (citing Tartell v. S. Fla. Sinus & Allergy Ctr., Inc., 790 F.3d 1253,
1257 (11th Cir. 2015)). Whether a company is a joint employer raises a question
of law. Id. (citing Aimable v. Long & Scott Farms, 20 F.3d 434, 440 (11th Cir.
1994)).
III. DISCUSSION
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As we have noted, the contracts at the center of Plaintiffs’ breach-of-contract
claims are Plaintiffs’ clearance orders issued under the H-2A visa program, which,
in turn, require compliance with the H-2A statutory and regulatory framework.
That framework uses the term “employer.” So we begin by reviewing the meaning
of that term under the Immigration and Nationality Act (“INA”), as amended by
the Immigration Reform and Control Act of 1986 (“IRCA”), which governs the H-
2A visa program. See 8 U.S.C. § 1188.
Notably, although the INA and several federal regulations set out
requirements for employers who take on H-2A workers, neither the statute nor any
relevant regulation expressly defines the term “employer.”
But the word “employer” does have a particular meaning in the common
law. And as we explained in Garcia-Celestino I, where a federal statute contains a
term with settled meaning under the common law, courts must presume Congress
meant to import that meaning unless the statute says otherwise. 843 F.3d at 1289-
90 (citing NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981)). Since the INA
does not define “employer,” we concluded that Congress intended the statute to
carry the definition of that term from the common law of agency. Id.
Consequently, we reasoned, whether Plaintiffs’ work contract makes Consolidated
Citrus a “joint employer” under the relevant portions of the INA depends on the
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definition of “employer” taken from the general common law of agency. Id. at
1290. 4
For that definition, we looked chiefly to Nationwide Mutual Insurance
Company v. Darden, in which the Supreme Court articulated several factors
relevant to determining whether an employer-employee relationship exists at
common law. See 503 U.S. 318, 323-24 (1992) (citing Cmty. for Creative Non-
Violence v. Reid, 490 U.S. 730, 751-52 (1989)). Foremost among those factors, we
observed, is “the hiring entity’s ‘right to control the manner and means by which
the product is accomplished.’” Garcia-Celestino I, 843 F.3d at 1292-93 (quoting
Darden, 503 U.S. at 323). See also Restatement (Second) of Agency § 220(1)
(1958) (defining “servant” as someone “employed to perform services in the affairs
of another and who with respect to the physical conduct in the performance of the
services is subject to the other’s control or right to control”); Clackamas
Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, 448 (2003) (designating “the
common-law element of control” as “the principal guidepost that should be
followed” in determining joint-employer status); Crew One Prod., Inc. v. N.L.R.B.,
811 F.3d 1305, 1311 (11th Cir. 2016) (citing N.L.R.B. v. Associated Diamond
4 We rely “on the general common law of agency, rather than on the law of any particular State,” when we interpret undefined terms in federal statutes. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 740 (1989). This practice “reflects the fact that ‘federal statutes are generally intended to have uniform nationwide application.’” Id. (quoting Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43 (1989)).
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Cabs, Inc., 702 F.2d 912, 919 (11th Cir. 1983)) (observing that among the
common-law factors, control over employees should receive “special attention” in
determining employer status).
Yet while the right to control is indispensable to our analysis and bears more
weight than any other single factor, that consideration alone “is not dispositive.”
Reid, 490 U.S. at 752. Rather, we must also account for other aspects of the
relationship between the putative employer and the worker. Among those, we
noted in Garcia-Celestino I, the Supreme Court has identified for possible
consideration the following: (1) “the skill required [for the work]”; (2) “the source
of the instrumentalities and tools”; (3) “the location of the work”; (4) “the duration
of the relationship between the parties”; (5) “whether the hiring party has the right
to assign additional projects to the hired party”; (6) “the extent of the hired party’s
discretion over when and how long to work”; (7) “the method of payment”; (8)
“the hired party’s role in hiring and paying assistants”; (9) “whether the work is
part of the regular business of the hiring party”; (10) “whether the hiring party is in
business”; (11) “the provision of employee benefits”; and (12) “the tax treatment
of the hired party.” Garcia-Celestino I, 843 F.3d at 1293 (internal quotation marks
omitted) (quoting Darden, 503 U.S. at 323-34).
Nevertheless, we emphasized that “[t]hough these factors may be instructive,
‘there is no shorthand formula or magic phrase that can be applied to find the
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answer’ [to whether a party is an “employer”] under the common law approach.”
Id. (quoting NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258 (1968)). Rather,
courts must assess what is relevant in a given case. And because Darden involved
the question of whether the plaintiff there was an independent contractor or an
employee (as did Reid, from which the Darden Court adopted its analytical
framework), the Darden factors do not always apply easily to cases concerning
other work relationships. Sometimes some—or even most—of the usual factors
will not shed light on a particular set of facts. In those cases, courts have focused
on other considerations more relevant to the specific facts before them.
For instance, in Clackamas, the Supreme Court addressed whether four
physician shareholders who jointly owned a practice and comprised its board of
directors also counted as “employees” of the practice under the common law. 538
U.S. at 442. The Supreme Court observed that the entity at issue, a “professional
corporation,” had “no exact precedent in the common law” and found the Darden
factors unhelpful to answering the question of whether the physicians were
“employees.” Id. at 445-47. So the Court set about identifying relevant factors for
the lower courts to use to analyze whether the professional corporation was the
physicians’ “employer” under the common law.
The Court began by reaffirming that “the common-law element of control is
the principal guidepost” for any analysis. Id. at 447-48. But the factors it held to
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be relevant, which it drew from an Equal Employment Opportunity Commission
compliance manual, focused on the very specific question of “whether a
shareholder-director is an employee.” Id. at 449. Those factors included
“[w]hether the organization can hire or fire the individual or set the rules and
regulations of the individual’s work”; “[w]hether and, if so, to what extent the
organization supervises the individual’s work,” “[w]hether the individual reports to
someone higher in the organization”; “[w]hether and, if so, to what extent the
individual is able to influence the organization”; “[w]hether the parties intended
that the individual be an employee, as expressed in written agreements or
contracts”; and “[w]hether the individual shares in the profits, losses, and liabilities
of the organization.” Id. at 449-50 (citation omitted).
As was true in Clackamas, the relationship between the parties here has “no
exact precedent in the common law” of which we are aware. See Clackamas, 538
U.S. at 447. Though Plaintiffs performed work on Consolidated Citrus’s groves,
Consolidated Citrus was not itself the “hiring party,” and the question we must
answer here is whether, in addition to Ruiz Harvesting, Consolidated Citrus was
also Plaintiffs’ employer. So unsurprisingly, not all of the typical common-law
factors identified in Darden are relevant to our analysis. For that reason, we must
identify and balance the factors that are actually relevant here, keeping in mind that
“all of the incidents of the relationship must be assessed and weighed with no one
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factor being decisive.” Darden, 503 U.S. at 324 (internal quotation marks omitted)
(quoting NLRB v. United Ins. Co. of America, 390 U.S. 254, 258 (1968)); see also
Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260-61 (4th Cir. 1997) (setting
out tailored factors relevant to whether a doctor is an employee of an entity
providing medical services).
A. Relevant Factors for Determining Whether Consolidated Citrus Was a Common-law “Employer”
We begin by pinpointing which factors do, in fact, bear on our analysis. As
in Darden and Clackamas, first and foremost, we consider control, which we have
emphasized is “the proper focus” of our inquiry. See Garcia-Celestino I, 843 F.3d
at 1292-93; Crew One, 811 F.3d at 1311. We also find three of the other common-
law factors relevant as traditionally formulated: “the source of the instrumentalities
and tools,” “the location of the work,” and “the provision of employee benefits.”
See Garcia-Celestino I, 843 F.3d at 1293.
Some of the remaining factors are also of value, once we customize them to
address the circumstances of the relationship at issue here. As we have noted, in
Darden, the Supreme Court detailed factors from the traditional common-law
framework for identifying an “employer.” There, the putative employer had a
direct relationship with the plaintiff, and the question concerned whether the
plaintiff was an employee or an independent contractor. See Darden, 503 U.S. at
321. So the traditional common-law framework made sense to apply, since the 14 Case: 17-12866 Date Filed: 08/02/2018 Page: 15 of 37
guiding factors refer to “the hiring party” and serve to distinguish employees from
independent contractors.
Here, however, Ruiz Harvesting—not Consolidated Citrus—was the hiring
party. As a result, we must tweak some of the remaining Darden factors to
account for this difference between the circumstances in Darden and those here.
See Clackamas, 538 U.S. at 449-50; Cilecek, 115 F.3d at 260-61.
We therefore consider the following additional factors: whether
Consolidated Citrus had the right to directly assign Plaintiffs additional work, cf.
Darden, 503 U.S. at 323 (“whether the hiring party has the right to assign
additional projects to the hired party”); the extent to which Consolidated Citrus had
discretion over when and how long Plaintiffs could work, cf. id. (“the extent of the
hired party’s discretion over when and how long to work”); and whether the work
Plaintiffs did is part of Consolidated Citrus’s regular business, cf. id. at 324
(“whether the work is part of the regular business of the hiring party”). See also
Garcia-Celestino I, 843 F.3d at 1293.
Together, these comprise all of the factors relevant to this case. 5 We now
explain why, viewed on the whole, they show that Consolidated Citrus was not
Plaintiffs’ employer under the common law.
5 We explain in section III(E) below why the remaining Darden factors are not relevant here.
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B. Factors Favoring the Determination that Consolidated Citrus Was Not a Common-law “Employer”
We first discuss those factors that weigh in favor of the conclusion that
Consolidated Citrus was not an “employer” under common-law principles: (1)
whether and to what extent Consolidated Citrus had “the right to control the
manner and means by which the product is accomplished,” Garcia-Celestino I, 843
F.3d at 1292-93 (quoting Darden, 503 U.S. at 323) (internal quotation marks
omitted); (2) “the source of the instrumentalities and tools,” id. at 1293 (quoting
Darden, 503 U.S. at 323); (3) “the provision of employee benefits,” id. (quoting
Darden, 503 U.S. at 324); and (4) whether Consolidated Citrus had discretion over
when and how long Plaintiffs could work, cf. id. (“the extent of the hired party’s
discretion over when and how long to work”) (quoting Darden, 503 U.S. at 323).
Because, as we have noted, control is the most important of these factors, we start
with it.
1. Consolidated Citrus did not have control over the manner and means of Plaintiffs’ work under the general common law.
At a general level, the common-law control test “takes into account the
degree of supervision, the entrepreneurial interests of the agent and any other
relevant factors.” Associated Diamond Cabs, 702 F.2d at 919-20. We emphasize
that “it is the right to control, not the actual exercise of control, that is significant.”
Id. (emphasis in the original) (citation omitted).
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We examined this factor in Crew One, where we held that a freelance-
worker-referral agency was not the common-law employer of the workers it
referred. The entity in question, called Crew One, ran a business contracting out
stagehands to staff large events fully operated by third-party producers. Crew One,
811 F.3d at 1308. Each stagehand signed an “Independent Contractor Agreement”
with Crew One and, after being entered into the company’s database, received
work offers on a first-come, first-served basis with full freedom to accept or
decline without consequence. Id. at 1309. Crew One required its stagehands to
abide by numerous policies, such as wearing proper attire and limiting interactions
with event attendees, but it provided no equipment to the stagehands other than a
reflective vest marked “Crew One” to be worn while staffing events. Id. at 1308.
Crew One also required its stagehands to check in with a Crew One project
coordinator, who confirmed attendance and assigned workers to a particular
department, such as rigging or carpentry. Id. at 1309.
But after the stagehands went to their designated departments, they reported
exclusively to the third-party producers, except that they had to sign out with Crew
One to record their times of departure. Id. And though Crew One did not withhold
taxes or offer its stagehands any benefits, it did directly pay wages to its
stagehands after receiving payment from the third-party producers. Id. at 1309.
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Based on these facts, we concluded that Crew One did not have the
common-law right to control the stagehands. Id. at 1311. We noted that the third-
party event producers solely exercised all control over the stagehands’ minute-to-
minute work—that is, “the means of the work” the stagehands performed. Id. Nor
did it matter to our analysis that the stagehands checked in and out with Crew One.
Id. As we explained, that requirement “evince[d] control over the ends of the job,
not the means of it.” Id. And under the common law of agency, we must focus on
an entity’s “control over the manner and means of the agent’s performance and the
details of the work” and ignore “mere economic control or control over the end
result of the performance.” See id. (internal quotation marks omitted) (citing
Associated Diamond Cabs, 702 F.2d at 919).
The common-law definition of “control” explored in Crew One stands in
contrast to the markedly different “control” analysis relevant to defining the term
“employer” under the FLSA. As we have observed, the FLSA defines “employ” as
“suffer or permit to work.” Garcia-Celestino I, 843 F.3d at 1287; 29 U.S.C.
§ 203(g). “Control” under that rubric does not focus on the actual work itself. See
Crew One, 811 F.3d at 1311. Rather, under the FLSA, we ask “whether, as a
matter of ‘economic reality,’ the hired individual is ‘economically dependent’ upon
the hiring entity.” Garcia-Celestino I, 843 F.3d at 1294. See Aimable v. Long &
Scott Farms, 20 F.3d 434, 440-41 (11th Cir. 1994) (proper focus under FLSA
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definition of “control” is on “direct employment decisions such as whom and how
many employees to hire, whom to assign to specific tasks, and how to design the
employees’ management structure”).
The common-law and FLSA definitions of “employer” diverge from one
another in other important ways as well, most notably in their breadth. The
FLSA’s “suffer or permit to work” standard “was developed to assign
responsibility to businesses that did not directly supervise putative employees.”
Antenor v. D & S Farms, 88 F.3d 925, 933 (11th Cir. 1996). We have called this
definition “one of the broadest possible delineations of the employer-employee
relationship.” Garcia-Celestino I, 843 F.3d at 1287.
The common-law test, on the other hand, may be reduced to identifying who
has the right to control workers’ “physical conduct in the performance of” their
work. See Restatement (Second) of Agency § 220(1). That results in a much
narrower analytical approach. Under the common law, we must look at only who
controls “the manner and means” and “the details of the work,” giving no
consideration to “mere economic control or control over the end result of the
performance.” See Crew One, 811 F.3d at 1311.
When we apply that test here, we must conclude that Consolidated Citrus did
not exhibit significant control over Plaintiffs.
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Focusing on the right to control the manner and means of Plaintiffs’ work,
see Crew One, 811 F.3d at 1311, it is clear that Ruiz Harvesting—and not
Consolidated Citrus—enjoyed that right. The district court’s findings show that,
for instance, Ruiz Harvesting decided what implements Plaintiffs would use:
ladders, sacks for gathering fruit, and tubs in which to deposit it. And
Consolidated Citrus played no role in repairing or replacing Plaintiffs’ equipment
when it became damaged. By contrast, though, Consolidated Citrus often
troubleshot for those workers it had hired directly.
In addition, Ruiz Harvesting crew leaders alone communicated with
Plaintiffs as they worked, providing direction, clarification, or correction to them
as needed. Consolidated Citrus, on the other hand, specifically “[did] not interfere
with the crew assignments for [Ruiz Harvesting] harvesters,” such as, for instance,
when conflicts between workers would arise.
Similarly, while Consolidated Citrus sometimes reminded its own workers
to wear their safety goggles, the company’s field supervisors did not give any
reminders to Plaintiffs. 6 In short, Consolidated Citrus neither had nor exercised the
right to direct the specifics of Plaintiffs’ work.
6 When asked about this at trial, one of Consolidated Citrus’s supervisors testified that he did not so advise Ruiz Harvesting’s workers because he “d[id]n’t know what [Ruiz Harvesting’s] policy [was] when it [came] to that,” and he answered affirmatively when asked whether Ruiz Harvesting could set its own on-site safety policies.
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The only semblance of control Consolidated Citrus retained was the right to
halt work for any reason, a right the district court found Consolidated Citrus did
periodically exercise. While this demonstrates at least some control over the
workers, it merits only minimal weight. Most landowners who contract for on-site
laborers retain the capability to halt work on their own property, at least under
certain conditions. Consolidated Citrus’s right to do so, though broad in scope,
does not differ from this in kind. To give it too much weight would risk converting
all landowners into joint employers over anyone working on their land.
That Consolidated Citrus provided neither tools nor instructions, and
otherwise had virtually no right to control the details of Plaintiffs’ physical work,
drives the analysis here. See Crew One, 811 F.3d at 1311; Restatement (Second)
of Agency § 220(1). Since control over the manner and means of Plaintiffs’
performance—that is, control over the details of Plaintiffs’ physical work—forms
the crux of the common-law definition, we must conclude that Consolidated Citrus
exhibited barely any control over Plaintiffs. So this factor weighs in favor of
finding that Consolidated Citrus was not Plaintiffs’ joint employer.
The district court reached the opposite conclusion concerning control. We
explain why we must disagree. First, the district court emphasized what it
described as the “high degree of supervision” Consolidated Citrus exercised over
Plaintiffs. In doing so, though, the court relied on several practices not relevant to
21 Case: 17-12866 Date Filed: 08/02/2018 Page: 22 of 37
common-law control. In particular, the court pointed to the company’s role in
clocking workers in and out, the company’s general requirement that workers start
work “at some time in the morning and . . . fill a particular number of trailers with
citrus each day,” the company’s determination of which parts of the grove the
workers would harvest, and the company’s supervisors’ on-site presence during
portions of the workday.
But practices such as assigning worksites and establishing production goals
serve to regulate only the ends rather than the manner and means of work, having
no effect on workers’ moment-to-moment tasks. See Crew One, 811 F.3d at 1311.
These kinds of considerations may well bear on the FLSA’s definition of “control,”
but they do not factor into the operative definition here. Similarly, clocking
Plaintiffs in and out does not bear on Plaintiffs’ actual work, either. Instead, that
practice merely “ensure[s] that the [workers] are present . . . .” See id. As a result,
these practices do not support a showing of common-law control, regardless of
whether we consider them individually or together.
Monitoring the workers in the field may, on the other hand, appear more
suggestive of control in the abstract. But the district court’s specific factual
findings here tell a different story. Consolidated Citrus’s harvesting supervisors
checked on each crew of workers for a few ten-to-fifteen-minute increments
throughout each workday, during which they “confirmed that the crew was picking
22 Case: 17-12866 Date Filed: 08/02/2018 Page: 23 of 37
in the right place,” “tested the fruit,” “scanned the block to see if any fruit had been
mistakenly left on the trees,” “and checked for garbage, debris . . . , and obvious
safety hazards.” 7 Company officials did not interact with the workers directly;
rather, they notified Ruiz Harvesting supervisors when any issues required
attention. And Ruiz Harvesting then ascertained how best to fix the situation. In
contrast, Consolidated Citrus sometimes spoke personally with those workers it
had hired, directing their individual tasks.
Here, Consolidated Citrus’s periodic field presence primarily affected the
ends—not the means—of Plaintiffs’ work. True, close monitoring may support a
finding of common-law control in some cases, especially where the evidence
shows that the monitoring translated into concrete changes to the workers’
behavior or to the direct expectations placed upon the workers. But again, our key
inquiry must focus on whether Consolidated Citrus exhibited control over “the
manner and means of the agent’s performance and the details of the work.” See
7 In its order post-remand, the district court stated that Consolidated Citrus supervisors “check[ed] in on each of [Ruiz Harvesting’s] crews for ten to fifteen minutes each day.” But in its initial findings of fact post-trial, the district court credited the testimony of one supervisor who estimated he would observe each Ruiz Harvesting crew for a few ten-to-fifteen-minute rotations throughout the day. The supervisor estimated that his time spent in the workers’ presence totaled about ninety minutes each day, though this included time overseeing them as they clocked in and out. Since the district court’s post-remand order expressly incorporated all of its original findings of fact, we take as correct its finding that Consolidated Citrus supervisors observed the workers for multiple ten-to-fifteen-minute periods throughout each day.
23 Case: 17-12866 Date Filed: 08/02/2018 Page: 24 of 37
Crew One, 811 F.3d at 1311. And the district court’s findings do not show a
connection of that kind here.
For example, the district court found that whenever a Consolidated Citrus
supervisor noticed unpicked fruit or garbage left on the ground, the supervisor
“sp[oke] to [Basiliso] Ruiz and/or the crew leader and ask[ed] [Ruiz Harvesting] to
rectify the situation.” But the district court’s findings end there, never revealing
what results, if any, this brought about. So we do not know whether the Ruiz
Harvesting crew leaders (or Ruiz himself) instructed the workers to correct each
problem or whether instead, the crew leaders simply addressed the problem on
their own.8 And we are left with no basis to conclude Consolidated Citrus’s
supervision in fact translated into a right to control Plaintiffs’ performance of their
work.
Plaintiffs bore the burden of proving that Consolidated Citrus was their
“employer” for purposes of establishing their breach-of-contract claims. See
Malvino v. Delluniversita, 840 F.3d 223, 231 (5th Cir. 2018) (“[W]hen a case does
go to trial, the burden is on the plaintiff to prove every element.”); Rivera-Flores v.
Puerto Rico Tel. Co., 64 F.3d 742, 747 (1st Cir. 1995) (observing the plaintiff
8 The trial evidence did show that when Consolidated Citrus brought up any concern to Ruiz Harvesting, Ruiz Harvesting’s supervisors would usually “take care of it.” But the record provides no insight into how exactly the problem was remedied—that is, whether the Ruiz Harvesting supervisors completed the work themselves or required Plaintiffs to do it. The difference matters, since the only issue before us is Consolidated Citrus’s right to control Plaintiffs, not its right to control Ruiz Harvesting.
24 Case: 17-12866 Date Filed: 08/02/2018 Page: 25 of 37
possesses the “burden of introducing evidence at trial on every element essential to
her claim”). So Plaintiffs’ failure to show that Consolidated Citrus’s in-grove
presence actually affected their moment-to-moment tasks prevents us from
upholding the district court’s conclusion that the company’s field supervision
demonstrated common-law control.
Besides these circumstances, the district court also pointed to Consolidated
Citrus’s mandatory decontamination procedures, which the company implemented
in an effort to prevent the spread of citrus canker disease, as a basis for concluding
Consolidated Citrus had a right to control Plaintiffs. We again disagree that this
shows evidence of control.
To explain why, we take a moment to describe what citrus canker is and how
it can affect a citrus grove. At trial, one of Consolidated Citrus’s owners testified
that citrus canker is an airborne bacterial disease causing citrus trees both to lose
their leaves and to drop their fruit prematurely. 9 Trial Tr. (Feb. 12, 2014) at 18-19.
Because the disease spreads so easily, government officials have periodically
inspected orange groves and ordered any infected trees—and all those nearby—to
9 Another witness testified that this would cause about ten percent of the fruit to drop prematurely. Trial Tr. (Feb. 19, 2014) at 60. But canker itself does not negatively affect the inside of citrus fruit, only creating blemishes on the outside. Trial Tr. (Feb. 12, 2014) at 21. Because Consolidated Citrus sold most of its fruit to juice processors, the infected fruit itself did not pose as much of a problem as it might have for a producer trying to distribute fresh fruit for sale. See id. Significantly, however, to stop the spread of the infection, Consolidated Citrus had to remove and destroy entire trees (and those nearby) found to have infected fruit.
25 Case: 17-12866 Date Filed: 08/02/2018 Page: 26 of 37
be removed. Id. at 19; Trial Tr. (Feb. 19, 2014) at 49. At least one trial witness
said that for each infected tree, this could mean clearing between 250 and 300
surrounding acres of trees. Trial Tr. (Feb. 12) at 19-20. Consolidated Citrus lost a
significant number of trees as a result, possibly as much as 3,000 acres’ worth.
Trial Tr. (Feb. 12) at 20.
Against this backdrop, Consolidated Citrus required Plaintiffs to walk
through an antibacterial mist and dip their picking sacks in decontaminant
solution.10 But under the circumstances, this process does not reflect the control
necessary to help evidence an employer-employee relationship under the common
law.
Rather, anti-canker decontamination procedures are merely a species of what
we have labeled “agricultural decisions” in the FLSA context: necessary parts of
agricultural administration such as choosing which fields to pick on which days or
dictating what planting specifications should be used. See Aimable, 20 F.3d at
441; Martinez-Mendoza v. Champion Int’l Corp., 340 F.3d 1200, 1210-11 (11th
Cir. 2003). We have said such decisions do not show “control” under the FLSA
definition even though they might indirectly affect how many workers need to be
hired, a factor usually relevant to the inquiry under that statute. See id. Rather, 10 The district court acknowledged some evidence suggesting that these procedures may have been designed and imposed by the state of Florida. But the court made no express finding one way or the other, so we assume for the purpose of this opinion that Consolidated Citrus designed and imposed the procedures itself.
26 Case: 17-12866 Date Filed: 08/02/2018 Page: 27 of 37
they simply reflect decisions that the science of successful agriculture mandates.
Requiring anti-canker decontamination procedures in Florida falls into this
category because without such procedures, the grower risks significant depletion of
its groves.
Just as purely agricultural decisions do not demonstrate “control” under the
FLSA definition, they do not show “control” as defined under the common law,
either. Such decisions do not affect the manner and means of the work because
they involve no real intervention over how the workers go about the details of
performing their moment-to-moment labor—in this case, picking the fruit. See
Crew One, 811 F.3d at 1311. These types of decisions also effectively represent
necessary preconditions to the existence of agricultural businesses. For these
reasons, we cannot conclude that the decontamination procedures show common-
law “control.” See also Restatement (Second) of Agency § 220 cmt. l (“If . . . rules
are made only for the general policing of the premises . . . , mere conformity to
such regulations does not indicate that the workmen are servants of the person
making the rules.”).
We find Plaintiffs’ arguments that Consolidated Citrus had the right to
control their work similarly unavailing. Plaintiffs raise two such arguments on
appeal. They first note that under the common law, the proper inquiry is not
whether Consolidated Citrus in fact exercised control over them but whether it
27 Case: 17-12866 Date Filed: 08/02/2018 Page: 28 of 37
simply retained the right to do so. We agree that this correctly states the law. See
Associated Diamond Cabs, 702 F.2d at 920 (“[T]he courts have noted that it is the
right to control, not the actual exercise of control, that is significant.”) (emphasis in
the original). But the distinction Plaintiffs draw has no effect on our analysis for a
simple reason: they do not identify any such control rights Consolidated Citrus
purportedly had.
And in fact, the record strongly indicates that Consolidated Citrus retained
no additional rights, at least on paper, beyond those it exercised. The company’s
written agreements with Ruiz Harvesting for each growing season specify that
Consolidated Citrus “will not direct employees of [Ruiz Harvesting] in any
fashion, but will communicate with [Ruiz Harvesting] regarding timing and quality
control of harvest operations on [Consolidated Citrus’s] groves.” 11 They say that
all workers Ruiz Harvesting hires “shall be subject to the exclusive control and
direction of [Ruiz Harvesting],” and Ruiz Harvesting will manage its workers
“without interference from [Consolidated Citrus].” And most significantly of all,
each agreement states that Consolidated Citrus “shall not exert actual control over,
nor possess the right to control, the actions of any employees of [Ruiz Harvesting]
in performing duties under this Agreement” (emphasis added). The most natural
11 The record contains separate written agreements for each growing year at issue, but the relevant provisions are materially identical in each one.
28 Case: 17-12866 Date Filed: 08/02/2018 Page: 29 of 37
reading of these provisions indicates that the parties intended for the right of
control over the workers to belong solely to Ruiz Harvesting. And Plaintiffs do not
present evidence that this agreement was some type of sham. 12 So Plaintiffs’
emphasis on the right to control does not does not aid their cause.
Plaintiffs next argue that control can be “entirely indirect” and “exercised
through a contractor as an intermediary.” They cite to Hodgson v. Griffin and
Brand of McAllen, Inc., 471 F.2d 235, 238 (5th Cir. 1973), in which the former
Fifth Circuit concluded that work instructions passed on through an intermediary
supervisor nonetheless evinced control over the workers. 13 See id. (“The fact that
appellant effected the supervision by speaking to the crew leaders, who in turn
spoke to the harvest workers, rather than speaking directly to the harvest workers
does not negate a degree of apparent on-the-job control over the harvest
workers.”).
12 We note that a particular work arrangement, as reflected either in written agreements or in actual practice, need not be taken at face value where some evidence shows the putative employer ceded paper authority precisely to dodge liability for violating the law in other ways. That, however, is not the case here. The record before us provides no indication that Consolidated Citrus and Ruiz Harvesting entered their arrangement for the purpose of insulating one or the other entity from liability for wrongdoing. Consolidated Citrus does not appear to have known of Ruiz Harvesting’s kickback scheme, likely in part because Ruiz Harvesting designed the scheme to evade Consolidated Citrus’s numerous safeguards for protecting against misconduct. Our analysis might have been affected if Consolidated Citrus knew of Ruiz Harvesting’s scheme or was willfully blind to whether misconduct was occurring. Under those circumstances, we would need to consider whether Consolidated Citrus’s lack of control on paper appeared to be a deliberate machination designed to skirt liability for its involvement. 13 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
29 Case: 17-12866 Date Filed: 08/02/2018 Page: 30 of 37
Though Hodgson arose under the FLSA, its discussion of “on-the-job
control” indeed pertains equally to the common-law standard of control over the
“manner and means” or “physical conduct in the performance” of work. See Crew
One, 811 F.3d at 1311; Restatement (Second) of Agency § 220(1). But Plaintiffs
again fail to identify any actions Consolidated Citrus carried out indirectly that
would make this standard applicable here. As we have noted, the district court’s
factual findings do not show that even Consolidated Citrus’s onsite supervision and
direct interactions with Ruiz Harvesting crew leaders translated into control over
the workers. Nor does the record offer any indication of any other indirect actions
Consolidated Citrus might have taken to control Plaintiffs’ work through Ruiz
Harvesting.
Overall, then, Consolidated Citrus exhibited little to no control over
Plaintiffs in ways relevant to the common-law “control” analysis. So this factor
strongly indicates that Consolidated Citrus was not a joint employer under the
common law.
2. Other Factors Indicate that Consolidated Citrus Was Not an Employer Under the Common Law
Other factors we have mentioned also support the conclusion that
Consolidated Citrus was not a joint employer under the common law. First, Ruiz
Harvesting was the sole source of the workers’ instrumentalities and tools. Though
we noted this fact in our discussion on control, the source of the tools represents an 30 Case: 17-12866 Date Filed: 08/02/2018 Page: 31 of 37
independent factor we separately consider under general common-law principles of
agency. See Garcia-Celestino I, 843 F.3d at 1293. And here, Consolidated Citrus
provided Plaintiffs with none of the materials used to perform their jobs. Nor,
based on its agreements with Ruiz Harvesting, would it have had the right to do so,
either.
Second, as the district court pointed out, the provision of employee benefits
was solely the province Ruiz Harvesting. Plaintiffs’ only benefit noted by the
district court was workers’ compensation insurance, which Ruiz Harvesting
provided in full. Though Consolidated Citrus required Ruiz Harvesting to
maintain coverage for its workers, Consolidated Citrus played no role in choosing
a provider or paying the insurance premiums, both of which were left solely to
Ruiz Harvesting.
Third, Ruiz Harvesting retained the great bulk of the discretion over when
and how long Plaintiffs could work. Consolidated Citrus generally expected
Plaintiffs to begin work “at some time in the morning,” but it was Ruiz Harvesting
that chose their precise start time. And while Consolidated Citrus designated how
much total fruit was to be picked every day, Plaintiffs’ end time was up to Ruiz
Harvesting. On some occasions, Plaintiffs would continue picking even after
meeting their required quotas. Likewise, during the workday, Ruiz Harvesting
determined when Plaintiffs could take breaks and for how long.
31 Case: 17-12866 Date Filed: 08/02/2018 Page: 32 of 37
These factors, taken together with control, all weigh strongly in favor of
finding that Consolidated Citrus was not Plaintiffs’ joint employer.
C. Factors Indicating that Consolidated Citrus Was Not a Joint Employer Under the Common Law
The remaining relevant factors militate in the other direction, but they do not
outweigh the factors we have so far described. True, Plaintiffs performed their
work at Consolidated Citrus’s own groves, and picking citrus fruit is at the heart of
Consolidated Citrus’s business. It is also true that while Ruiz Harvesting directed
Plaintiffs’ work throughout each day, Consolidated Citrus could assign them
additional work in the future by increasing their daily production targets. These
three factors do provide some weight suggesting that Consolidated Citrus was a
joint employer under the common law.
But on balance, they cannot outweigh control and the other factors favoring
a finding that Consolidated Citrus was not Plaintiffs’ joint employer under the
common-law standard. As we have explained, the company lacked the right to
control the manner and means of Plaintiffs’ work, the weightiest of all
considerations germane to our analysis. And Ruiz Harvesting was the sole source
of Plaintiffs’ tools, benefits, and work schedules.
D. Factors Irrelevant to Determining Whether Consolidated Citrus Was a Joint Employer Under the Common Law
32 Case: 17-12866 Date Filed: 08/02/2018 Page: 33 of 37
Finally, we think it worthwhile to explain why several other common-law
factors noted in Darden do not bear on our analysis.
First, because some of the common-law factors were conceived for the
purpose of differentiating between an employee and an independent contractor—a
matter that is not at issue here—they cannot provide insight into this case, even if
modified.
For instance, “the method of payment” inquiry focuses on whether the
workers were paid “by the time or by the job”; an hourly-pay arrangement usually
suggests workers are employees, while a by-the-job arrangement tends to indicate
they are independent contractors. See Crew One, 811 F.3d at 1311 (quoting
Restatement (Second) of Agency § 220(2)(g)). But Consolidated Citrus had no say
in which method Ruiz Harvesting used to pay Plaintiffs. 14 So regardless of which
payment method Ruiz Harvesting chose (by-the-job, as it happens), this factor
gives us no insight into whether Consolidated Citrus was Plaintiffs’ employer.
The same is true for “[Plaintiffs’] role in hiring and paying assistants.” See
Garcia-Celestino I, 843 F.3d at 1293. Because we are not trying to discern
14 Plaintiffs argue on appeal that Consolidated Citrus did have at least some say by requiring Ruiz Harvesting to hire them under the H-2A program, which forced Ruiz Harvesting to comply with the federally mandated minimum pay requirements. But even constrained by federal regulations, Ruiz Harvesting still had full discretion to choose between a piece-rate or an hourly payment method without input from Consolidated Citrus.
33 Case: 17-12866 Date Filed: 08/02/2018 Page: 34 of 37
whether Plaintiffs were independent contractors, the presence or absence of hired
assistants cannot shed light on Consolidated Citrus’s “employer” status.
“[T]he duration of the relationship between the parties” likewise is unhelpful
for our purposes. This consideration gives insight into whether the workers had an
ongoing relationship with the putative employer or were simply hired for a one-off
job—another concern relevant to determining whether a worker is an employee or
an independent contractor. See Marie v. Am. Red Cross, 771 F.3d 344, 358 (6th
Cir. 2014) (explaining that “in evaluating this factor, the court ‘is not concerned
with the length of the relationship, but rather, when hired, whether the relationship
was one of a long-term at-will employee or one to complete a particular task in a
specified time-frame’”). It sheds no light on whether one of multiple entities
counts as an “employer.”
Second, some factors do not bear on our analysis here because the record
before us does not provide the necessary insight to tell which way they cut. For
instance, neither party identifies relevant evidence about Plaintiffs’ tax treatment.
Perhaps certain facts of this nature—such as whether Consolidated Citrus issued
Plaintiffs relevant tax forms, or how state and federal authorities regarded the
relationship between the company and Plaintiffs for tax purposes—may have borne
on our analysis. Cf. Rev. Rul. 87-41, 1987-1 C.B. 296 (setting forth Internal
Revenue Service guidance on who qualifies as an “employee” under federal
34 Case: 17-12866 Date Filed: 08/02/2018 Page: 35 of 37
taxation legal framework). But neither party has identified any record evidence to
this effect, and we have not found anything especially relevant in the record,
either.15
The same is also true for the skill required. Even assuming picking fruit
constitutes unskilled labor, the Restatement gives conflicting advice on the
significance of that circumstance. On the one hand, it states that “[u]nskilled labor
is usually performed by those customarily regarded as servants.” But on the other,
where an entity “furnishes unskilled workmen to do work for another, it is not
abnormal to find that the workmen remain the servants of the one supplying them.”
Restatement (Second) of Agency § 220 cmt. i. So standing alone, the fact that
Plaintiffs engage in unskilled labor tells us little. Instead, the Restatement urges
that “[t]he custom of the community as to the control ordinarily exercised . . . ,
together with the skill which is required in the occupation, is often of almost
conclusive weight.” Id. cmt. l.
But the parties have not identified anything in the record showing how much
control a grower customarily exercises over laborers picking its crops. The district
15 Consolidated Citrus does point to the district court’s finding on summary judgment that Ruiz Harvesting “paid the applicable taxes” on Plaintiffs’ paychecks. See Dist. Ct. Summ. J. Op. at 23; Appellant Br. at 31. Leaving aside whether we can consider that fact here, we do not see it as relevant. We know that Ruiz Harvesting was Plaintiffs’ employer. The question here concerns whether Consolidated Citrus was as well. So the fact that Ruiz Harvesting paid taxes on Plaintiffs’ wages still leaves open the possibility (without affirmatively suggesting) that Consolidated Citrus was also Plaintiffs’ employer under the common law.
35 Case: 17-12866 Date Filed: 08/02/2018 Page: 36 of 37
court below cited to precedent of ours noting that “the grower is not expected to
look over the shoulder of each farmworker every hour of every day,” and that a
grower’s supervision may render it an employer “whether orders are
communicated directly to the laborer or indirectly through the contractor.” Dist.
Ct. Slip Op. (May 11, 2017) at 8 (citing Antenor, 88 F.3d at 935). But we have
already explained why, on this record, those considerations do not assist us. The
record before us includes no evidence about the customary relationship between
growers and unskilled workers in Plaintiffs’ situation.
So when we consider only those common-law considerations relevant here,
we are left with the conclusion that on balance, Consolidated Citrus was not
Plaintiffs’ joint employer.
Nevertheless, we emphasize once more that the common-law determination
of who is an employer does not reduce to any “shorthand formula or magic
phrase.” See Garcia-Celestino, 843 F.3d at 1293. Under other facts, our
conclusion might be different.
IV. CONCLUSION
For the reasons we have explained above, we conclude Consolidated Citrus
was not Plaintiffs’ joint employer under the common law. The district court’s
judgment is vacated, and the case is remanded for entry of judgment for
Consolidated Citrus on the breach-of-contract claim.
36 Case: 17-12866 Date Filed: 08/02/2018 Page: 37 of 37
VACATED AND REMANDED.