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ROEBUCK v. HUDSON VALLEY FARMS

December 18, 2002

MILTON ROEBUCK, RODELL ROBERTS, ANTHONY BRYANT AND GEORGE BOOTHE, PLAINTIFFS,
V.
HUDSON VALLEY FARMS, INC.; JEFFREY PALADINO; WILLIAM PALADINO; WALTER MORGAN; AND PEPPERIDGE FARM, INC., DEFENDANTS.



The opinion of the court was delivered by: Norman A. Mordue, United States District Judge

MEMORANDUM-DECISION AND ORDER

In the initial complaint, filed on December 15, 2000, Milton Roebuck, a migrant farm worker employed at a packing shed owned and/or operated by one or more defendants, claims that, during weeks when he and other similarly situated workers processed fruit grown on other farms, defendants failed to pay them at a rate of time and a half for work in excess of 40 hours per week as required by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and Article 19, N.Y. Labor Law.*fn1

As a result of amendments to the complaint, Rodell Roberts, Anthony Bryant and George Boothe have been added as plaintiffs, and Pepperidge Farm, Inc., and William J. Paladino have been added as defendants. Plaintiffs bring a representative action under 29 U.S.C. § 216 (b) alleging FLSA violations (first cause of action) and a class action under Fed.R.Civ.P. 23(b) alleging N.Y. Labor Law violations (second cause of action). The second amended complaint seeks certification as a ELSA representative action and as a Rule 23 class action; a declaration that defendants violated FLSA and N.Y. Labor Law; an injunction prohibiting defendants from committing future violations; money damages for lost wages; liquidated damages; and attorneys' fees and costs.

By Notice of Motion dated April 27, 2001, Milton Roebuck, then the sole plaintiff, moved for leave to proceed as a representative action under FLSA, for court-authorized notice of the action to potential opt-in plaintiffs, and for the disclosure of names and addresses of the potential opt-in plaintiffs. Due to the amendments to the complaint, the briefing schedule was revised. All parties have now briefed the motion, and plaintiffs have submitted an amended proposed notice.*fn2

For reasons set forth below, the Court grants plaintiffs' motion for court-authorized notice to potential opt-in plaintiffs under 29 U.S.C. § 216 (b). The Court defines the class of potential opt-in plaintiffs as all packing shed workers employed during the three-year period preceding October 29, 2001, and directs defendants to produce the names and last known addresses of all packing shed workers employed during that time period. The Court also sets certain requirements pertaining to notice and the opt-in period.

DISCUSSION

Under section 207(a)(1) of FLSA, employees who work more than 40 hours per week are ordinarily entitled to be paid at time-and-a-half.*fn3 Workers employed in agriculture are exempt from this general rule. See 29 U.S.C. § 213 (b)(12).*fn4 It is well established that "agriculture" under FLSA "includes farming in both a primary and a secondary sense."*fn5 Bayside Enters., Inc. v. N.L.R.B., 429 U.S. 298, 300 (1977). The term includes "any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidentally to or in conjunction with such farming operations[,]" Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 763 (1949), that is, any "functions [which] are uniquely integrated into the over-all agricultural enterprise." Wirtz v. Jackson & Perkins Co., 312 F.2d 48, 50 (2d Cir. 1963). It has been held that where the employer processes produce grown by independent farmers, the employer cannot benefit from the exemption. See Marshall v. Gulf & Western Inds., Inc., 552 F.2d 124, 126 (5th Cir. 1977); Hodgson v. Wittenberg, 464 F.2d 1219, 1222 (5th Cir. 1972). Also, where a function such as processing or packing produce is separately organized as an independent productive activity, the exemption does not apply. See Farmers Reservoir, 337 U.S. at 761; Marshall, 552 F.2d at 126; Hodgson v. Idaho Trout Processors Co., 497 F.2d 58, 60 (9th Cir. 1974).

Section 216(b) of FLSA authorizes a representative action by employees to recover unpaid overtime compensation and liquidated damages from employers who violate the FLSA's overtime provisions.*fn6 In order to participate in a representative action*fn7 under section 216(b), an employee must consent ("opt in") to the action in writing.*fn8 District courts have the discretionary power to authorize the sending of notice to potential class members to inform them of the action and to give them the opportunity to participate by opting in. See Hoffmann-LaRoche Inc. v. Sperling, 493 U.S. 165, 169-70 (1989). The Second Circuit has stated that a district court's power to authorize notice to potential opt-in plaintiffs in an appropriate FLSA case "comports with the broad remedial purpose of the Act, which should be given a liberal construction, as well as with the interest of the courts in avoiding multiplicity of suits." Braunstein v. Eastern Photographic Labs., Inc., 600 F.2d 335, 336 (2d Cir. 1979).

In addressing a request for court-authorized notice of a class action under FLSA, a court must consider whether plaintiffs have demonstrated the existence of a definable class of potential plaintiffs who are "similarly situated." 29 U.S.C. § 216 (b). To meet this burden, plaintiffs need only "mak[e] a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Realite v. Ark Restaurants Corp., 7 F. Supp.2d 303, 306 (S.D.N.Y. 1998); accord Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997); Schwed v. General Elec. Co., 159 F.R.D. 373, 375-76 (N.D.N.Y. 1995) ("plaintiffs need only describe the potential class within reasonable limits and provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist."). A court should not evaluate the merits of plaintiffs' claim in determining whether class notice is warranted. See Hoffman, 982 F. Supp. at 262.

In support of their application to this Court, plaintiffs submit the declarations of plaintiffs Milton Roebuck, George Boothe and Rodell Roberts, in support of their contention that they and other employees of defendants were subjected to pay practices which were unlawful under FLSA, specifically failure to pay packing shed employees overtime wages as required by section 207(a)(1) in weeks during which they worked more than 40 hours and were not engaged in exempt agricultural work under section 213(b)(12). It is plaintiffs' position that they were not engaged in exempt work when they packed and/or processed fruit obtained from growers other than defendants, or when they were employed in the "slicing and dicing" of fruit.

The affidavit of Milton Roebuck states in part:

2. I was employed at the packing and processing shed of the Defendants in this case from approximately September 1, 1991 until approximately May 1, 2000.
3. At the shed, I worked on the line and operated a forklift.
4. While employed with the Defendants, I observed that fruit coming from other farms was packed and/or processed by ...

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