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FLSA Class Action Defense Cases-De Leon-Granados v. Eller & Sons: Eleventh Circuit Holds That Agricultural Worker Protection Act (AWPA) Class Action May Be Certified Independent Of FLSA Class Action Claims

Where Class Action Asserted Claims Under Both Agricultural Worker Protection Act (AWPA) and Fair Labor Standards Act (FLSA), District Court did not Abuse its Discretion in Certifying AWPA “Opt-Out” Class Action After Conditionally Certifying FLSA “Opt-In” Class Action Eleventh Circuit Holds

Plaintiffs, migrant workers hired under the H2-B non-immigrant visa program, filed a class action in Georgia federal court against Eller & Sons Trees alleging violations of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and the Fair Labor Standards Act (FLSA). De Leon-Granados v. Eller & Sons Trees, Inc., ___ F.3d ___, 2007 WL 2456206, *1 (11th Cir. August 31, 2007). Plaintiffs sought class action treatment of their AWPA claims, but the district court denied the motion without prejudice; plaintiffs also sought preliminary certification of a class action under the FLSA, which the district court granted. Id. After conducting additional discovery, and after receiving only 5 “opt-in” requests from among the 1800 notices sent under the FLSA class action, plaintiffs again sought certification of a class action for the AWPA claims. Id. The district court granted the motion and certified a Rule 23(b)(3) “opt out” class action under the AWPA, id. Specifically, the district court certified a class action on behalf of more than 1,500 migrant workers admitted to the United States under the H-2B temporary foreign worker visa program, and sub-class of migrant workers who pledged collateral with Eller & Sons’ agents in order to obtain employment. Id., at *2. Defense attorneys filed an interlocutory appeal but the Eleventh Circuit affirmed, holding that the district court did not abuse its discretion in granting plaintiffs’ motion for class action treatment.

Eller & Sons is a small Georgia company that provides reforestation and forestry services; most of its employees plant trees throughout the southern U.S. from December through February. Eller hires people from Guatemala, Honduras and Mexico under the H2-B non-immigrant visa program, and is required to pay hourly wages as determined by the State Workforce Agency (SWA). De Leon-Granados, at *1. The class action complaint alleges that Eller was to pay an average hourly rate of $8.32, well above the federal minimum wage rate, but that it failed to do so. Id. The defense objected to class action treatment, arguing that a collective action under the FLSA would be a superior method of addressing the AWPA claims, but the district court disagreed. Id., at *2. The district court further found that plaintiffs had satisfied the requirements for class actions under Rule 23, id. The appellate court reviewed that ruling for abuse of discretion, id.

Defense attorneys first argued that the AWPA claims were premised on violations of the FLSA and “must therefore be adjudicated as an opt-in collective action under 29 U.S.C. § 216(b) instead of an opt-out Rule 23(b)(3) class action.” De Leon-Granados, at *2-*3. Under the FLSA, class members must affirmatively elect to “opt in” to the class action, but under Rule 23(b)(3) “all qualifying class members become party-plaintiffs unless they opt out of the action.” Id., at *3 (citations omitted). After rejecting defense claims that “the workers’ AWPA claims are truly FLSA claims in disguise,” the Eleventh Court concluded that the statutory language of the AWPA indicates Congressional intent to allow such claims to be brought as Rule 23 class actions. Id. The Circuit Court concluded at page *3, “If Congress intended § 216(b) to be the exclusive remedy for violations of the AWPA’s wage payment provisions, it would have also said so.” It therefore held that the district court did not abuse its discretion in certifying an AWPA class action, id. (The author notes that there is case law holding that it is improper to certify “opt in” and “opt out” classes as part of the same action, but it does not appear that defense attorneys asserted this objection.)

The defense alternatively argued that the requirements for class action set forth in Rule 23 had not been met. Specifically, defense attorneys challenged the finding of adequacy of representation and of superiority. De Leon-Granados, at *4. (Defendant also challenged on appeal numerosity, but the Circuit Court held that the issue had been waived because the defense failed to raise the argument in the district court, id.) The defense challenged the adequacy of the class representatives on the ground that “they invoked the Fifth Amendment during their depositions when asked if they worked for other employers in the United States,” arguing that “the negative inferences that can be drawn from the invocation of the Fifth Amendment make the named plaintiffs unsuitable class representatives.” Id. The district court recognized that this could be a problem, but concluded that the relevance of the issue first must be resolved, id. Because the district court “committed to continually examine the adequacy of representation of the class representatives,” the Eleventh Circuit held that it did not abuse its discretion in concluding that the adequacy of representation test had been met. Id.

The defense argued that class action treatment was not the superior method of resolving the AWPA claims “because a highly individualized assessment of the facts will be necessary to determine the amount of hours each employee worked compared to the amount recorded.” De Leon-Granados, at *4. The Eleventh Circuit characterized this as “a valid concern,” but explained that the AWPA permits injured workers to recover either actual or statutory damages and “it is within the district court’s discretion to award statutory damages where proof of actual damages is scarce.” Id. (citation omitted). Because an award of statutory damages would “eliminate the need to determine individualized damages based on actual hours worked,” the Circuit Court held that the district court did not abuse its discretion in certifying the class action. Id. In sum, the defense “failed to prove the AWPA claims were required to be brought as an FLSA collective action,” or that the district court otherwise abused its discretion in granting the motion to certify a class action as to the AWPA claims. Id., at *5. Accordingly, it affirmed the judgment, id.

NOTE: The Eleventh Circuit summarized the allegations of the class action complaint at page *1 as follows: “In Count I of the Complaint, the workers alleged Eller & Sons violated the AWPA by (1) failing to reimburse travel, recruitment and visa processing expenses, (2) maintaining and providing false and inaccurate records of hours worked, (3) failing to pay them the applicable prevailing wage rate and overtime wages, (4) failing to provide them with promised full-time employment, (5) knowingly providing them with false and misleading information regarding the terms and existence of employment, and (6) requiring a sub-class of workers to post collateral in the form of the deeds to their property to obtain employment. In Count II of their Complaint, the workers alleged Eller & Sons violated the FLSA by failing to pay them the applicable minimum wage of $5.15/hour and overtime wages for hours worked.”

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