Employment Law

Michigan Department of Energy, Labor, and Economic Growth (DELEG) Settles With U.S. Workers in Case Alleging Discrimination in Favor of Foreign Workers
     For the second time in less than three years, DELEG/Bureau of Workforce Transformation has settled a lawsuit brought by U.S. workers claiming that the Department failed to provide services to U.S. workers seeking employment at Michigan farms using the H-2A foreign guestworker program.  FLS represents the U.S. workers in this case.  For more details, see the press release here. 

Minimum Wage Violations and AWPA Violations
     FLS represented a family of migrant farmworkers who picked cucumbers in Oceana County. The family was paid partly by piece-rate and partly on an hourly basis. They kept track of their hours, and they thought that they did not get paid enough. The attorneys at FLS were able to compare their pay stubs to workers’ own records of their hours, and we determined that they were not paid the minimum wage based on the total number of hours that they worked.
     Farmworkers who are being paid piece rate still have to be paid at least the minimum wage of $5.15 per hour, which means that they should keep track of their hours. Federal law also says that the number of hours worked should appear on the workers’ pay stubs, even if the worker is being paid piece rate.
     FLS determined that the family was owed over $800 in wages to bring their pay to the minimum wage. We negotiated with the grower on behalf of the farmworkers. Since the non-payment of minimum wage involved other violations of federal law, we agreed to settle the case for over $4,000, all of which went to the farmworker family.

Zelenka Nursery layoff (March 2004 update)
     Following initial mass lay-offs last fall, staff from FLS & Michigan Migrant Legal Assistance Project conducted community education and group intake, including contacting migrant legal aid projects in Texas, North Carolina, Tennessee, and Chicago. FLS and MMLAP now represent approximately 300 Zelenka employees throughout the U.S. and Mexico to preserve their rights to unpaid wages, housing deposits, and transportation reimbursements -- a large portion of which has already been obtained from the "new" Zelenka management. The unpaid balances are the subject of Notices of Claim filed in Bankruptcy Court in Chicago on behalf of the current and former Zelenka employees who we represent.

Unpaid Wages to H-2A Workers
     In collaboration with migrant employment service representatives of the Michigan Department of Career Development, FLS helped to facilitate a U.S. Department of Labor investigation that resulted in payment of illegally withheld back wages to a crew of 22 foreign (H-2A) workers from Mexico who worked in Cass County.

AWPA Case with Migrant Detasslers
     FLS and Michigan Migrant Legal Assistance Project obtained a $20,000 settlement for 12 migrant detasslers.  The case involved many violations of the federal Agricultural Worker Protection Act (AWPA).  Among other AWPA violations, the workers were housed in dilapidated, overcrowded, and unlicensed housing in the city of Three Rivers, where they were forced to sleep on egg crates in lieu of mattresses.
 
Lopez v. Schlubatis Orchards
     This W.D. Mich. litigation, co-counseled with MMLAP and originating in Branch County, alleging "off-the-books" payment of a worker's wages and failure to pay overtime and social security taxes in violation of AWPA, was settled after voluntary mediation for approximately $10,000.
   
Elizondo v. Podgorniak
     This landmark case settled with payment to nine farmworkers for 85 Agricultural Worker Protection Act (AWPA) violations following the Court's ruling on plaintiffs' motion for summary judgment of adversary proceedings complaint in E.D. Mich. Bankruptcy Court.
     This case originated from the Bay City area and was brought on behalf of a family of migrant farmworkers who worked picking cucumbers, commonly called "pickles."  Prior to the Bankruptcy Court proceedings, the federal district court judge made two significant rulings.  First, she ruled that the law required that farmworkers in the pickle harvest are to be considered employees and not independent contractors.  The judge found that the grower tried to enter into "sham" contracts in an attempt to create an independent contract relationship.
     Second, the judge ruled that the AWPA's "working arrangement" provision is violated when the grower fails to comply with applicable federal labor protection standards, such as field sanitation requirements.
     The case of Elizondo v. Podgorniak is reported at 70 F.Supp.2d 758 and 100 F.Supp.2d 459.