United States District Court, Northern District of New York
December 18, 2002
MILTON ROEBUCK, RODELL ROBERTS, ANTHONY BRYANT AND GEORGE BOOTHE, PLAINTIFFS,
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.
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
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
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
4. While employed with the Defendants, I observed that
fruit coming from other farms was packed and/or
processed by myself and others in the shed.
5. While I was working at the shed, other workers and
I spent part of our time working on the line where
fruit was sliced or diced, and then packaged.
6. I frequently worked over forty hours per week
during workweeks when I did the work described in
¶¶ 4 and 5, supra.
7. I was not paid overtime at the rate of time-and-one
half- for every hour I worked over forty hours in a
workweek when I did the work described in ¶¶ 4 and
8. I understand that the United States Department of
Labor made Hudson Valley Farms, Inc. pay me some of
the overtime I was owed between September 26, 1998 and
October 23, 1999. However, I believe I am still owed
additional overtime for workweeks when I
was employed at the Defendants' operations.
9. I observed that other employees at the packing shed
did work that was the same or similar to the work I
did. I also observed that these employees also
frequently worked over 40 hours per week and that they
were not paid overtime wages at the rate of
The affidavits of George Boothe and Rodell Roberts are similar.
In opposition, defendants submit an affidavit from defendant William
Paladino, stating that Roebuck operated the fork lift and could not have
observed other employees working over 40 hours per week, that he could
not have known the other employees' rate of pay, and that he is unlikely
to have obtained this information in conversations with other employees
because most of the employees did not speak English with any fluency.
The Court finds that the affidavits of Roebuck, Boothe and Roberts are
sufficient to constitute a preliminary showing that plaintiffs and
potential plaintiffs together were victims of a common policy or plan that
violated the law, specifically, that defendants did not pay packing shed
employees time and a half for overtime when the employees performed work
which fell outside the agricultural exemption from the overtime pay
requirement of ELSA. The action is only in the discovery and notice
stage; the Court may later take remedial action if subsequent proceedings
establish that plaintiffs and/or opt-in plaintiffs are in fact not
similarly situated and that the class should be narrowed in some
fashion. See, e.g., Realite, 7 F. Supp.2d at 308.
Plaintiffs request that the Court direct notice to all packing shed
workers employed during the three-year period preceding October 29,
2001. Defendants raise a number of objections. First, they urge that the
class of former employees entitled to notice should be limited to those
packing shed workers who worked overtime during the time period in
question. However, any attempt at this stage of the action to determine
which employees worked overtime would be based solely on defendants'
records. Plaintiffs should be authorized to send notices to all those who
worked in the packing shed during the time in question; thus, any worker
who believes he worked overtime will have the opportunity to be heard.
Defendants also argue that those employees who were engaged in "slicing
and dicing" were exempt from ELSA overtime requirements as a matter of
law, on the ground that these activities were performed "incidentally to
or in conjunction with [defendants'] farming operations." Farmers
Reservoir, 337 U.S. at 762-763. At this stage of the action and in the
absence of a reasonable opportunity for plaintiffs to conduct discovery,
the Court cannot definitively rule on whether the slicing and dicing
process was incidental to the farming operation or whether it was
separately organized as an independent productive activity, see id. at
761, or, as plaintiffs contend, "more akin to manufacturing." Likewise,
the Court cannot determine whether, when and the extent to which the
produce which was processed was grown by independent farmers. See
generally Hodgson v. Wittenberg, 464 F.2d at 1222. The Court agrees with
defendants' proposal, however, that the notice contain a statement of
defendants' position on the issue. The Court does not believe that such a
statement would be unduly confusing to potential opt-in plaintiffs.
Specifically, at the close of the second paragraph of the section of the
notice headed "Description of the Lawsuit," a sentence should be added
as requested by Pepperidge Farm: "It is defendants' position
that the packing shed workers were agricultural employees engaged in
secondary agriculture and therefore were exempt from the overtime
provisions of the Fair Labor Standards Act."
Defendants further argue that in defining the class of potential opt-in
plaintiffs the two-year limitation period applicable to non-willful
violations should be utilized, not the three-year limitation period
applicable to willful violations. See 29 U.S.C. § 255.*fn9 The Court
agrees with plaintiffs that the issue of willfulness cannot be determined
at this stage and that therefore the Court should direct that the notice
be distributed to all packing shed workers employed during the three-year
period preceding October 29, 2001.*fn10
In addition, defendants argue that, if notice is distributed to all
packing shed workers employed during the three-year period preceding
October 29, 2001, it will improperly include employees who released their
ELSA claims in October 1999 as a result of a settlement with the U.S.
Department of Labor. Plaintiffs argue that some waivers may be invalid.
Moreover, it is not clear whether the waivers cover the entire time
period preceding October 1999 with respect to all potential
plaintiffs.*fn11 At this stage of the action the Court cannot
determine whether and how the waivers affect the rights of each plaintiff
and potential plaintiff. The Court agrees with defendants' proposal,
however, that the issue be set forth in the notice. Thus, a sentence should
be added to the second paragraph of "Description of the Lawsuit" to state:
"It is also defendants' position that employees who were provided with a
U.S. Department of Labor form WH-58 in October 1999 and received additional
compensation, have waived any right to recover additional wages for
certain periods of time."
Plaintiffs agree that all translations of the court-authorized notice
and consent to sue will be verified by a federal court-certified
translator. With respect to defendants' contention that the signatures on
the consents to sue should be authenticated, plaintiffs argue that all
that is required is that the consent reflect that the opt-in plaintiff
had a basic understanding of the nature of the consent. See Riojas v.
Seal Produce, Inc., 82 F.R.D. 613, 617 (S.D.Tex. 1979). It is reasonable
to assume that a number of potential plaintiffs are presently migrant
workers who may live in rural areas and lack resources and access to
transportation. A requirement that their consents be authenticated could
well present a heavy burden, if not an insuperable obstacle, to their
participation in the action. A declaration made under penalty of perjury,
28 U.S.C. § 1746, is sufficient.
With respect to the length of the opt-in period, plaintiffs state that
they anticipate significant difficulties in locating
plaintiffs, noting that they "migrate not only within North America, . .
. but from as far away as Bangladesh." Under all of the circumstances,
plaintiffs' request of nine months is not unreasonable. Nor have
defendants made any showing that an opt-in period of this length will
prejudice them in any way. Accordingly, the Court grants plaintiffs'
request of a nine-month opt-in period.
In view of the Court's decision herein, discovery of the names and last
known addresses of potential plaintiffs is appropriate at this time.
Accordingly, defendants are directed to produce to plaintiffs' counsel
the names and last known addresses of all packing shed workers employed
during the three-year period preceding October 29, 2001. Defendants shall
do so no later than 35 days from the date of this Memorandum-Decision and
Order. The opt-in period will commence to run on the date that defendants
provide the names and addresses of the potential class members to
Accordingly, it is
ORDERED that the motion by plaintiffs for court-authorized notice to
potential opt-in plaintiffs in this representative action under
29 U.S.C. § 216 (b) is granted; and it is further
ORDERED that the class of potential opt-in plaintiffs entitled to
notice is defined as all packing shed workers employed during the
three-year period preceding October 29, 2001; and it is further
ORDERED that the proposed amended "Notice and Consent to Sue for
Violations of the Fair Labor Standards Act" attached as Exhibit 1 to
"Plaintiffs' Reply to Defendant Pepperidge Farm's Memorandum of Law in
Opposition to Plaintiffs' Motion to Proceed as a Representative Action,
for Court-Authorized Notice, and for the Disclosure of the Names and
Addresses of the Potential Opt-in Plaintiffs" (Dkt. # 68), is approved,
except that plaintiffs are directed to add the material set forth in the
following ordering paragraph; and it is further
ORDERED that plaintiffs add the following material at the close of the
second paragraph of the section of the notice headed "Description of the
Lawsuit": "It is defendants' position that the packing shed workers were
agricultural employees engaged in secondary agriculture and therefore
were exempt from the overtime provisions of the Fair Labor Standards
Act. It is also defendants' position that employees who were provided
with a U.S. Department of Labor form WH-58 in October 1999 and received
additional compensation, have waived any right to recover additional
wages for certain periods of time"; and it is further
ORDERED that no later than 35 days after the date of this
Memorandum-Decision and Order defendants shall produce to plaintiffs'
counsel the names and last known addresses of all packing shed workers
employed during the three-year period preceding October 29, 2001; and it
ORDERED that the time period within which potential opt-in plaintiffs
may opt in is nine months; and it is further
ORDERED that the nine-month opt-in period will commence to run on the
date that defendants provide the names and last known addresses of the
potential class members to plaintiffs; and it is further
ORDERED that all translations of the notice and consent from English
into another language must be verified by a federal court-certified
IT IS SO ORDERED.