Howard v. Malcolm

852 F.2d 101, 1988 U.S. App. LEXIS 9396, 1988 WL 71402
CourtCourt of Appeals for the Fourth Circuit
DecidedJuly 13, 1988
DocketNos. 87-1654, 87-1720
StatusPublished
Cited by13 cases

This text of 852 F.2d 101 (Howard v. Malcolm) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard v. Malcolm, 852 F.2d 101, 1988 U.S. App. LEXIS 9396, 1988 WL 71402 (4th Cir. 1988).

Opinions

ERVIN, Circuit Judge:

Plaintiffs Milton Howard and a number of his migrant co-workers appeal the judgment below for defendant Kim Malcolm, d/b/a Baytree Plantation and Barra Farms. The district court found that Malcolm was not their joint employer during the summer of 1985 under the Migrant and Seasonal Agricultural Worker Protection [103]*103Act (AWPA), 29 U.S.C. § 1802(2) and (5),1 and that pursuant to 29 U.S.C. § 1842,2 Malcolm had sufficiently verified the labor contractor’s housing authorization card.3 We agree with the rulings below regarding Malcolm’s employer status. However, we disagree with the district court’s interpretation of the verification requirements under § 1842. Thus, we affirm in part and reverse in part.

I.

In the spring of 1985, Kim Malcolm, manager of Barra Farms in Cumberland County, North Carolina, opted to expand the farm’s operation by harvesting sweet corn. To facilitate the harvest, Malcolm hired Frank Blanding, a farm labor contractor, to recruit and oversee a corn harvest crew. Blanding was chosen from among several applicants because of his experience harvesting corn and his ability to operate a “mule train.” A mule train is a self-propelled wagon that carries up to ten workers. The machine, with its stations for box makers and corn packers, is used to organize and expedite the corn harvesting.

On May 21, 1985, Malcolm and Blanding entered into an agreement whereby Bland-ing agreed to provide a mule train and to travel to Barra Farms from Florida in June, 1985, with a crew of migrant workers in order to harvest the corn. The agreement expressly provided that Blanding would furnish the transportation, housing and insurance, and pay the workers wages of $3.35 per hour. Blanding was to receive $1.00 per crate of corn harvested, from which he was to pay the crew’s wages and overhead costs. Malcolm would finance the transportation of the mule train from Florida to North Carolina and Blanding would handle its return. In addition, Blanding was responsible for supplying hauling trucks, a bus to transport the workers, and other tools and equipment. With a $2,000 advance from Malcolm, Blanding arranged for the housing of the workers. Malcolm also advanced Blanding $4,300 to finance renting the mule train and recruiting the workers.

At the time of their agreement, Blanding showed his valid 1985 farm labor contractor’s certificate of registration to Malcolm. The certificate indicated Blanding was certified to transport, house and drive migrant laborers. On the reverse side, the certificate specified that the authorized housing facility was the “Johnson-Hudson Camp.” Blanding arranged housing at the Godwin labor camp.

When the crew arrived in June 1985, they worked two days in the cucumber harvest because the corn crop had not yet matured. Malcolm paid Blanding for the use of his crew and Blanding, in turn, paid his workers. When the crew’s inexperience in harvesting cucumbers became evident, Blanding pulled them from the field upon request.

[104]*104The corn harvest proved to be unsuccessful, with weather conditions destroying about half of the crop. In the fields Bland-ing provided day-to-day supervision, and Malcolm gave overall instructions on where and when to harvest in order to save the maximum amount of the corn crop.

Although Blanding deducted FICA taxes from the crew’s wages, he did not submit the money to the federal government in 1985 or 1986. He neither deducted nor paid any FUTA taxes.

The workers filed this action on September 23, 1985, under the AWPA, 29 U.S.C. §§ 1801 et seq., and the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq.4 Before trial, a settlement was reached between the workers and Malcolm with respect to the FLSA claims. Along with other claims which are not at issue here, the workers alleged that Malcolm was a joint employer under 29 U.S.C. § 1802(2) and (5), and that he violated various provisions of the AWPA by failing to pay the crew their wages when due, failing to pay FUTA and FICA taxes on their behalf, and failing to keep adequate work records. The migrant workers also alleged that Malcolm failed to comply with the housing verification requirements under 29 U.S.C. § 1842.

The AWPA claims were tried before the court from February 23 to March 3, 1987. On June 10, 1987, the district court ruled that Malcolm was not a joint employer of the farmworkers and therefore not liable under the AWPA. Citing Haywood v Barnes, 109 F.R.D. 568 (E.D.N.C.1986), the trial court considered various factors in determining Malcolm’s nonemployer status. First, Barra Farms owned or leased the farmland, but David Godwin owned the housing site. All housing arrangements were made by Blanding, although an advance from Malcolm did finance the rental of the Godwin site. The court emphasized that Blanding and his workers provided skilled labor in their operation of the mule train. Blanding, not Malcolm, owned or leased the major equipment used by the crew, including the mule train, a truck and a bus for transportation of the workers. The workers were recruited by Blanding solely for the sweet corn harvest, working a total of fourteen days. Blanding was employed for one summer, for one crop harvest, and was the sole labor contractor at Barra Farms with a labor contract. Blanding bargained for his pay rate, and in turn set the wages for the workers. He gave them their pay on a daily basis as opposed to the weekly schedule practiced by Barra and its employees. Furthermore, he exercised the day-to-day supervision of the crew. Malcolm’s instructions were limited to advising Blanding which portion of the crop to harvest in light of the crop damage. Blanding had the responsibility for hiring, controlling and firing the employees; however, Barra Farms did dismiss one of Blanding’s workers for being intoxicated on the job site. Finally, Blanding was responsible for preparing the payroll and maintaining wage records.

Based on these factors, the district court found that Blanding was an independent contractor and that Malcolm was not a joint employer, and thus not liable as such for the workers’ AWPA claims. The lower court also found that Malcolm had taken reasonable steps to ensure that Blanding was properly authorized to house the workers pursuant to 29 U.S.C. § 1842.

II.

The definition of “employer” under the AWPA includes the employment principles under the FLSA, 29 U.S.C. § 203(d) and (g). 29 C.F.R. § 500.20(h)(l)(2)(3) (1987).

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Bluebook (online)
852 F.2d 101, 1988 U.S. App. LEXIS 9396, 1988 WL 71402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-malcolm-ca4-1988.