Entry on Motions for Summary Judgment

JOHN D. TINDER, Judge.

The Plaintiffs bring this action under the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), 29 U.S.C. § 1801 et seq., the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., the Federal Insurance Contributions Act ("FICA"), 26 U.S.C. § 3101 et seq., and state law.

They move for partial summary judgment against all Defendants on the issue of the Defendants' liability under the AWPA, the FLSA and the FICA. Only the Benters have responded to the Plaintiffs' motion. The Benters also have moved for summary judgment on all claims.

I. Background

At all relevant times, Plaintiffs Eulalia Cardenas, Edward Cardenas, Roberto Cardenas, Jr., Elizabeth Cardenas, Jose Salvador Espinoza, Emma Espinoza, Araceli Espinoza, and Jose Espinoza, Jr., Raul Pacheco, Maria Pacheco, Isabel Pacheco, Deysdi Pacheco, Mario Pacheco, and Myrna Pacheco (collectively the "Worker Plaintiffs") were engaged in "agricultural employment" protected by the AWPA. During the summer of 1996 they were employed by Defendants Curtis Benter and Sarah Benter and were "migrant agricultural workers" as defined by the AWPA; Defendants Curtis Benter and Sarah Benter were "agricultural employers" subject to the AWPA; and Defendant Mike Gomez was a "farm labor contractor" within the meaning of 29 U.S.C. § 1802. The Benters have not incorporated their farm which is referred to by some people as "Benter Farms," and "Benter Farms" is not a separate legal entity. The Benters employed the Worker Plaintiffs during the 1996 season.

The Benters hired Mike Gomez to be crew chief for the 1996 pickle harvest. As crew chief, he was to recruit, acquire and supervise workers. The Benters provided Gomez with a written document containing the terms and conditions of employment for the workers he was to recruit. They did not authorize Gomez to describe any terms and conditions of employment to workers he recruited other than those stated above.

Before hiring Gomez, the Benters checked to determine whether he was properly registered as a farm labor contractor. He was registered with the U.S. Department of Labor ("USDOL") as a farm labor contractor and authorized to recruit, solicit, furnish, hire and employ. His certificate of registration did not authorize him to perform transportation or driving. His registration expired on May 31, 1997.

Mike Gomez was assisted by Mario Gomez and Chris Mendoza in recruiting the Cardenas family to work for the Benters. Mario offered the Cardenas family employment with the Benters, and Chris Mendoza was present at the time of the offer. Mario made oral representations to the Cardenas family regarding the terms and conditions of employment with the Benters: work in hoeing, work in picking pickles at a pay rate of $1.50 to $2.00 a bucket, work in tobacco, a pay advance, rent-free housing with a kitchen and adequate bedding, free transportation to and from Indiana, transportation in Indiana, and child care.

Before the Cardenas family left Texas, Mike Gomez orally reaffirmed these terms and conditions to Eulalia Cardenas over the telephone. The Cardenas family did not have a vehicle at their disposal at the time they were hired to work for the Benters. But for the promise of transportation, the Cardenas family would not have accepted employment with the Benters.

As for the Espinoza and Pacheco Plaintiffs, in late July 1996, at an agricultural migrant camp at or around Kokomo, Indiana, Mike Gomez personally recruited them to work for the Benters. He orally promised the Espinoza and Pacheco Plaintiffs work in picking pickles at the rate of $1.50 to $2.00 per bucket, work in detasseling corn, a pay advance, and rent-free housing with a kitchen and adequate bedding. He additionally promised the Espinoza Plaintiffs work in hoeing. None of the Worker Plaintiffs were ever provided or shown by Mike Gomez or the Benters any written document concerning the terms and conditions of their employment with the Benters at the time of their recruitment.

The Benters had arranged and paid for housing for the Plaintiffs at the Knights Inn in Seymour, Indiana. Neither Benter has or ever has had any ownership interest in the Knights Inn. Nor do they have or ever had any authority or influence over how the Knights Inn is operated, managed, or administered.

In late July 1996, Chris Mendoza transported the Cardenas family members from Texas to Seymour, Indiana in a cargo van, registered to Mike Gomez, with no seats or seatbelts. Upon arriving in Seymour, the Cardenas family was taken to the Knights Inn where they were met by Mike Gomez. The Espinoza and Pacheco Plaintiffs similarly met with Mike Gomez at the Knights Inn upon their arrival in Seymour in late July 1996. Each Plaintiff family had one room in the Inn. There is a dispute of material fact as to whether the room had enough beds for all of the family members or whether some had to sleep on the floor. Mike Gomez drove the Cardenas workers to and from the Benters' farm everyday.

On August 7, 1996, Eulalia Cardenas, Raul Pacheco and Jose Espinoza (collectively the "family representatives") approached the Benters with problems that had arisen with respect to their employment with the Benters. On August 8, the Benters went to the Knights Inn to pay the Worker Plaintiffs for the work that had been done.

Representatives from the Legal Services Organization were present at the Knights Inn.

The Benters claim that they computed each Worker Plaintiffs' wages according to the minimum wage. The Benters state in their supplemental affidavits that each worker within a family worked the same number of hours as the other workers in that family. The Benters made and kept one document purportedly showing the number of hours worked by the Cardenas family workers (50 hours X 4 workers for a total of 200 hours). Similarly, the Benters made and kept one document purportedly showing the number of hours worked by the Espinoza family workers (53 hours X 5 workers for a total of 265 hours) and one document for the Pacheco family workers (53 hours X 6 workers for a total of 318 hours).

The Plaintiffs disagree with the Benters' computation of the number of hours worked, and have offered evidence that they worked more hours than those claimed by the Benters.

Eulalia Cardenas states in her Second Supplemental Affidavit that she worked at least 61 hours, her son Roberto worked at least 77 hours, her daughter Elizabeth worked at least 64 hours, and her son Eduardo worked at least 64 hours. (Sec. Suppl. Aff. Eulalia Cardenas ¶ 1.) In his Second Supplemental Affidavit Jose Salvador Espinoza states that he and his wife Emma, son Jose and daughter, Araceli worked 66 = hours for the Benters. (Sec. Suppl. Aff. Jose Salvador Espinoza ¶ 1.) The Benters miscalculated that 5 people were working in the Espinoza family when there were only 4 workers in the Espinoza family. Raul Pacheco states in his Second Supplemental Affidavit that he, his wife Maria, his son Mario, his daughters Isabel and Deysi and daughter-in-law Myrna all worked at least 120 each hours for the Benters. (Sec. Suppl. Aff. Raul Pacheco ¶ 1.)

On August 9, 1996, the Benters paid in one check to Eulalia Cardenas the money they computed as due to all the Cardenas workers ($758.42); they paid in one check to Jose Espinoza the money they computed as due to all the Espinoza workers ($934.52); and they paid in one check to Raul Pacheco the money that they computed as due to all of the Pacheco workers ($1,130.86). The Benters claim they originally did not intend to make payment in this manner, but did so only upon request by a spokesperson for each family that they wanted one check per family. The Benters state:

the [representatives] from Legal Services told Curt to pay [the families] this way if that is what they wanted. The hours of each person in each group [family] were gone over, and everyone was in agreement that the hours worked were correct. Curt then wrote pay checks for each group as this is the way they wanted it.

(Answer to Interrog. No. 17.) Mr. Benter states that on August 8, 1996, all of the workers agreed that the pay was correct. (C. Benter Supp. Aff. ¶ 7.)

The Plaintiffs, however, dispute this fact. The family representatives state that, acting on their own behalf and on behalf of their respective families, they never requested or consented to be paid with one check for their families and never agreed that the amount paid was correct. Further, the Plaintiffs have come forward with evidence that the Benters never expressed to them that receipt of the check would bar any future claims, that neither Eulalia Cardenas nor Jose Salvador Espinoza saw the term "labor in full" which was on the checks they cashed, and that Raul Pacheco did not understand what the term meant. In addition, there is evidence that the family representatives never intended to settle any claims with the Benters and never authorized anyone from Legal Services Organization to waive their rights to future claims against the Benters.

Mr. Benter provided Eulalia Cardenas with one pay statement for all the Cardenas workers. The statement purportedly shows the total gross pay, the deductions and total net pay of the Cardenas family workers. The statement reflects the totals for the Cardenas family; it does not reflect any amounts for each worker individually. Similarly, the Benters provided one pay statement for the Espinoza family workers and one pay statement for the Pacheco family workers. These statements, like that for the Cardenas family, do not reflect any amounts for each worker individually, but reflect the total amounts for each family as a whole.

The Benters did not pay the employer's social security share for each Worker Plaintiff at the time it was due. As of August 1999, Mr. Benter had corrected the W-2s for each Worker Plaintiff.

II. Summary Judgment Standard

Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is a genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c).

III. Analysis

The AWPA provides a variety of protections for migrant and seasonal workers. It regulates housing and transportation for workers, 29 U.S.C. § 1823, 1841 requires written disclosures of working conditions at the time of the worker's recruitment, and prohibits false and misleading representations regarding the terms and conditions of employment. 29 U.S.C. § 1816, 1831. The AWPA was enacted in 1983 to replace the Farm Labor Contract Registration Act of 1963 ("FLCRA"). The statute was intended to be remedial in nature. See, e.g., Charles v. Burton, 169 F.3d 1322, 1344 (11th Cir.) ("since the AWPA is a remedial statute, we must construe it broadly."), r'hrg denied, 182 F.3d 938 (11th Cir.), cert. denied, 120 S.Ct. 191 (U.S. 1999); Flores v. Rios, 36 F.3d 507, 510 (6th Cir. 1994). The AWPA expanded the statutory duties to apply to any person recruiting, employing, housing, or transporting workers, so long as such person was a "farm labor contractor," an "agricultural employer" or an "agricultural association." See 29 U.S.C. § 1802(1) (2). As noted in Bueno v. Mattner, 829 F.2d 1380 (6th Cir. 1987): "The substantive content of the earlier act [FLCRA] was incorporated into the . . . [AWPA], but the new Act went beyond the old by imposing many of the notice and disclosure duties that had been required only of farm labor contractors on the agricultural employer." Id. at 1382.

Most of the Plaintiffs' claims in the instant case allege violations of the AWPA.

They allege the Defendants violated the AWPA by: (1) failing to provide written disclosures of the terms and conditions of employment at the time of recruitment, 29 U.S.C. § 1821(a); (2) providing false or misleading information concerning the terms and conditions of employment, 29 U.S.C. § 1821(f); (3) failing to comply with the terms of the working arrangement, 29 U.S.C. § 1822(c); (4) failing to pay the wages owed when due, 29 U.S.C. § 1822(a); (5) failing to make, keep and preserve pay records as required by 29 U.S.C. § 1821(d)(1); (6) failing to provide each worker with pay statements as required by 29 U.S.C. § 1821(d)(2); (7) failing to ensure that the housing provided them complied with the applicable federal and state safety and health standards, 29 U.S.C. § 1823(a); (8) housing them without first securing the necessary certification, 29 U.S.C. § 1823(b); (9) failing to post or present each worker with a statement of the terms and conditions of occupancy of the housing, 29 U.S.C. § 1821(c); (10) using or causing to be used certain vehicles for transportation of the Cardenas family without first ensuring said vehicles met the minimum safety standards, 29 U.S.C. § 1841(b); and (11) utilizing the services of a farm labor contractor not properly registered and authorized to engage in the activities for which he was utilized, 29 U.S.C. § 1842. The Plaintiffs also allege the Defendants failed to pay the Worker Plaintiffs the minimum wage in violation of the FLSA and violated the FICA by failing to report their earnings to the IRS and Social Security Administration and failing to pay the Social Security (FICA) taxes owed for the Worker Plaintiffs. Finally, the Plaintiffs allege a breach of their employment contract under state law.

The Plaintiffs move for partial summary judgment against the Benters, Mike Gomez, Mario Gomez and Chris Mendoza on the issue of liability on certain of the Plaintiffs' claims under the AWPA, the FLSA and the FICA. The record fails to show that either Mike Gomez, Mario Gomez or Chris Mendoza has been served with the summons and Complaint. For this reason, on this date, the court is issuing an Order to Show Cause to the Plaintiffs, directing them to show cause why this action should not be dismissed as to Mike Gomez, Mario Gomez and Chris Mendoza for failure to serve them pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The court therefore considers the Plaintiffs' motion as against only the Benters.

The Benters move for summary judgment, contending: (1) "Benter Farms" is not a legal entity capable of being sued; (2) they did not violate any housing provisions of the AWPA; (3) they are not liable for any unauthorized promises made by Mike Gomez; (4) they paid each of the workers minimum wage; (5) Mr. Benter has corrected the errors in the W-2s for each worker so that there is no longer any FICA violation; (6) they made, kept and preserved pay records as required by the AWPA; (7) they provided each worker with an itemized pay statement; (8) before hiring Mike Gomez they confirmed he was a properly registered farm labor contractor; (9) they are not liable for any alleged transportation deficiencies. Before addressing the summary judgment motions, however, the court considers the Benters' implied motion to strike which is made in their Answer Brief.

A. Motion to Strike

The Benters move to strike Exhibits VI, VII, IX and X on the grounds that they are inadmissible as unsworn and uncertified pursuant to Rule 56(e) of the Federal Rules of Civil Procedure. The motion is DENIED for the following reasons.

Plaintiffs' Exhibit VI contains copies of documents from the USDOL. Exhibit VI was not originally certified; however, the Plaintiffs subsequently moved to supplement the record with certified copies of the documents from the USDOL, and the court granted their motion. Thus, the deficiency with respect to the documents contained in Exhibit VI has been corrected.

Exhibit VII contains copies of documents received by Plaintiffs' counsel from the Indiana State Department of Health ("ISDH") pertaining to the inspection and certification of agricultural labor camps owned or operated by the Benters, Mike Gomez or Mario Gomez in 1993 through 1996. The Plaintiffs now have filed the Affidavit of Mike Hoover, an employee of the ISDH which attests that the documents attached as Exhibit VII are true and accurate copies of documents he sent to the Plaintiffs' counsel. Thus, the deficiency as to Exhibit VII documents has been corrected.

Exhibit IX contains a copy of a facsimile transmission of a purported registration from the Indiana Bureau of Motor Vehicles of the van registered to Mike Gomez and allegedly used to transport the Cardenas family from Texas to Indiana. The Plaintiffs subsequently filed a certification of the registration, thus correcting the original deficiency in the exhibit.

Exhibit X is a copy of the USDOL Opinion Letter dated September 25, 1990. The DOL's interpretations in opinion letters "are `entitled to respect,' . . . to the extent that they are persuasive. . . ." Christensen v. Harris County, 120 S.Ct. 1655, 1657 (2000) (quoting Skidmore v. Swift Co., 323 U.S. 134, 140 (1944)). As such, the opinion letter should not be stricken.

B. "Benter Farms" as Defendant

The undisputed facts establish that "Benter Farms" is not a legal entity capable of being sued. Therefore, "Benter Farms" is DISMISSED as a Defendant to this action.

C. The Benters' Liability For the Acts of Others

The Benters contend they are not liable to the Plaintiffs for the acts of Mike Gomez or Mario Gomez, either under the AWPA or common law agency principles. The Benters claim that they gave Mike Gomez no authority to describe any terms and conditions to workers he recruited other than those terms they gave him in a written document. They also claim that they gave neither Mario Gomez nor Chris Mendoza any authority to do anything for them. The Plaintiffs, on the other hand, argue that the Benters are liable for the actions of Mike Gomez, Mario Gomez and Chris Mendoza under three different theories: (1) Mike Gomez and the Benters were joint employers of the Worker Plaintiffs; and (2) Mike Gomez was the Benters' authorized farm labor contractor; and (3) agency law.

1. Joint Employer

The Plaintiffs first contend that the Benters are liable for Mike Gomez's acts because they were joint employers of the Worker Plaintiffs. The AWPA adopts the "joint employer" doctrine as a foundation of the Act. See H.R. REP. No. 97-855, at (1982), reprinted in 1982 U.S.C.C.A.N. 4547, 4552-54. The joint employer doctrine was intended to apply when "a defendant employer/association asserts that the worker in question . . . was solely an employee of an independent contractor/crew leader." Id. at 4552-53. The House Report explains the purpose of the joint employer doctrine: "[E]ven if a farm labor contractor is found to be a bona fide independent contractor, that this status does not as a matter of law negate the possibility that an agricultural employer or association may be a joint employer of the harvest workers and jointly responsible for the contractor's employees." Id. at 4553.

Every case of which this court is aware that applied the joint employer doctrine under the AWPA did so in order to determine whether the plaintiff workers were employed by an agricultural employer or association. See, e.g., Charles v. Burton, 169 F.3d 1322, 1334 (11th Cir.), cert. denied Burton v. Charles, 120 S.Ct. 191 (1999); Torres-Lopez v. May, 111 F.3d 633, 636, 644 (9th Cir. 1997); Antenor v. DS Farms, 88 F.3d 925, 929 (11th Cir. 1996); Castillo v. Case Farms of Ohio, Inc., 96 F. Supp. 578, 591 (W.D.Tex. 1999); cf. Rutherford Food Corp. v. McComb, 331 U.S. 722, 724-25, 730 (1947) (FLSA case). The court's research has revealed no case in which the joint employer doctrine was applied where the agricultural employer admitted that it employed the plaintiff workers, and the AWPA's legislative history indicates that the doctrine was not intended to be applied in such a situation. Because the Benters have admitted they employed the Worker Plaintiffs, reliance on the joint employer doctrine is unnecessary and would be inappropriate. If the Benters are to be held liable for the acts of Mike Gomez it must be under a different theory.

2. Authorized Farm Labor Contractor

The Plaintiffs contend the Benters are liable for Mike Gomez's actions simply because he was their authorized farm labor contractor. They first rely upon Martinez v. Berelkamp Farms, Inc., 635 F. Supp. 1191, 1194 (N.D.Ohio. 1986), which recognized that the AWPA was enacted to "correct a key weakness of the FLCRA which held only the `farm labor contractor' liable for abuses and afforded protection to those employers not falling within the statute's narrow definition." In Martinez the defendant farmers argued they were not liable under the AWPA because the Act was intended to regulate the activities of farm labor contractors rather than the farmers themselves. Id. at 1193. Martinez neither holds nor suggests that an agricultural employer is always liable for the acts of its farm labor contractor.

The Plaintiffs cite to Bueno v. Mattner, 829 F.2d 1380 (6th Cir. 1987), for background of the AWPA:

The substantive content of the . . . [FLCRA] was incorporated into the . . . [AWPA], but the new Act went beyond the old by imposing many of the notice and disclosure duties that had been required only of farm labor contractors on the agricultural employer.

Id. at 1382 (footnote omitted). The issues presented in Bueno were whether the owners and operators of a family farming operation qualified for the family business exception to the AWPA's disclosure requirements, whether their violation of the AWPA was intentional despite a lack of knowledge of the Act, and whether there were FLSA minimum wage violations. Id. The Bueno court does not hold or even address whether an agricultural employer may be held liable for the acts of its authorized farm labor contractor.

The Plaintiffs also rely on Montelongo v. Meese, 803 F.2d 1341 (5th Cir. 1986), for the proposition that: "A person may not insulate himself from the provisions of the Act [AWPA] by simply conducting his activities through underlings who deal more directly with the workers." Id. at 1346-47. The quoted passage, however, comes from the court's discussion of a farm worker recruiter's liability for recruiting violations involving crew members where the contractor claimed his liability was limited to the crew leaders with whom he had dealt directly. Id. In deciding whether the farm labor contractor which employed the farm worker recruiter could be held liable, however, the court applied agency principles. See id. at 1348-49. Montelongo therefore provides no support for the Plaintiffs' argument that the Benters may be held liable for any act of Mike Gomez simply because he was their farm labor contractor. Alba v. Gonzalez, 124 Lab. Cas. (CCH) ¶ 35,755 (D.N.M. Mar. 5, 1992), upon which Plaintiffs rely, also applied principles of agency in concluding that a farm labor contractor was required to comply with the terms of the working arrangement made by his employee. Id. at 48,739.

Both parties rely upon Avila v. A. Sam Sons, 856 F. Supp. 763, 773 (W.D.N.Y. 1994), aff'd, 60 F.3d 812 (2nd Cir. 1995), to support their arguments regarding the Benters' liability for the acts of Mike Gomez. In Avila the plaintiffs were promised work and housing by crew leaders, but no written disclosures were made. The plaintiffs alleged, inter alia, that the defendant agricultural employer violated the disclosure provision of the AWPA, 29 U.S.C. § 1821(a). The agricultural employer denied liability under the AWPA, arguing that it was not responsible for the acts of the crew leaders because the crew leaders were not authorized to make any promises on the agricultural employer's behalf. Id. at 771. The issue to be decided was whether the agricultural employer "authorized the crew leaders to recruit the workers and therefore can be held responsible . . . for the lack of written disclosures." Id. The plaintiffs presented no evidence to support their claim, and the defendants denied authorizing the crew leaders to recruit workers. Id. The court therefore held that the defendant agricultural employer could not be held liable for the lack of written disclosures. Id. at 771-72.

Avila does not stand for the sweeping proposition, argued by the Benters, that an agricultural employer cannot be held liable for violating an agreement made by a farm labor contractor. Nor does it stand for the proposition, suggested by the Plaintiffs, that an agricultural employer is always liable for any and all actions of a farm labor contractor who was authorized by the employer to recruit farm workers. Because the evidence in Avila established that the agricultural employer did not authorize the crew leaders to recruit workers at all, the court did not have to reach the question of whether the employer could be held liable for any specific activity of the crew leader which exceeded the employer's authorization.

The Plaintiffs have cited no authority which establishes that an agricultural employer is liable for all acts of its farm labor contractor simply because of the contractor's status.

"[N]owhere in the AWPA is it stated that an agricultural employer is automatically liable for every violation committed by a farm labor contractor." Castillo v. Case Farms of Ohio, Inc., 96 F. Supp. 578, 592 (W.D.Tex. 1999); see also 29 C.F.R. § 500.70(b), (c), (d). In the absence of any authority supporting the Plaintiffs' argument that the Benters may be held liable for Mike Gomez's acts simply because he was their farm labor contractor, the court declines to hold them liable under such a theory.

3. Agency Principles

The AWPA does not exempt agricultural employers and farm labor contractors from common law agency principles. See Castillo, 96 F. Supp. at 593; see also Montelongo, 803 F.2d at 1349 (concluding agency principles apply under the AWPA's predecessor the FLCRA). Instead, the AWPA was intended to supplement common law agency principles. See Castillo, 96 F. Supp. at 593 (quoting H.R. REP. NO. 97-885, at 7, reprinted in 1982 U.S.C.C.A.N. at 4560). Thus, the court considers whether the Benters may be held liable for Mike Gomez's actions under Indiana's agency law.

"`A general agent is one who is authorized to transact all the business of his principal, or all of his business of some particular kind, or at some particular place.'" Flintridge Station Assocs. v. American Fletcher Mortg. Co., 761 F.2d 434, 439 (7th Cir. 1985) (quoting Farm Bureau Mut. Ins. Co. v. Coffin, 186 N.E.2d 180, 182 (1962)). A special agent, on the other hand, "`is one who is authorized to do one or more specific acts, in pursuance of particular instructions or within restrictions necessarily implied from the acts to be done.'" Id. The Indiana Supreme Court has explained the principal's liability for the acts of a general agent as follows:

The principal will be bound by the acts of a general agent, if the latter acted within the usual and ordinary scope of the business in which he was employed, notwithstanding he may have violated the private instructions which the principal may have given him provided the person dealing with such agent was ignorant of such violation and that the agent exceeded his authority.

Koval v. Simon Telelect, Inc., 693 N.E.2d 1299, 1304 (Ind. 1998) (quotation omitted).

The court continued:

The reason for this rule is that if one of two innocent parties must suffer due to a betrayal of trust — either the principal or the third party — the loss should fall on the party who is most at fault. Because the principal puts the agent in a position of trust, the principal should bear the loss.

Id. (quotation omitted). In contrast, "[t]he principal is not bound by the acts of a special agent, if he exceeds the limits of his authority." Id. (quotation omitted).

It is undisputed that Mike Gomez was hired by the Benters as crew chief and authorized to recruit, acquire and supervise workers for the Benters. The record supports a finding that he was hired to transact all the recruiting business of the Benters.

Additionally, though the Benters gave him a document containing the terms and conditions of employment for the workers he was to recruit, there is no evidence that they placed any express limitation or restriction on the manner in which he was to recruit, acquire and supervise those workers. Thus, the record supports the finding that Mike Gomez was a general agent rather than special agent of the Benters. As a general agent, the Benters are bound by his acts which were within the usual and ordinary scope of recruiting, acquiring and supervising workers even if he violated instructions which the Benters may have given him provided the Plaintiffs were unaware of such violation and that Gomez exceeded his authority.

D. Required Written Disclosures Under § 1821(a)

Each farm labor contractor, [or] agricultural employer . . . which recruits any migrant agricultural worker shall ascertain and disclose in writing to each such worker who is recruited for employment the following information at the time of the worker's recruitment. . . .

The Benters contend that they should not be held liable for Mike Gomez's actions in recruiting the Plaintiffs because the Benters themselves did not perform the recruiting.

They cite to Avila v. A. Sam Sons, 856 F. Supp. 763, 773 (W.D.N.Y. 1994), aff'd, 60 F.3d 812 (2nd Cir. 1995), for support. But as discussed, Avila is factually distinguishable and does not address the specific question at issue in the instant case. In contrast with Avila, the Benters do not deny, but admit that they hired Mike Gomez to recruit and acquire workers for them. Thus, he was authorized to recruit and acquire such workers. In addition, Mike Gomez was authorized to offer terms and conditions of employment with the Benters to the workers whom he recruited.

It is noted that Mario Gomez and Chris Mendoza rather than Mike Gomez made the first contact with the Cardenas Plaintiffs. The Benters argue they should not be held liable for the acts of Mario and Chris. Another district court considered and rejected a similar argument in Escobar v. Baker, 814 F. Supp. 1491 (W.D.Wash. 1993). There, a farm owner, Baker, arranged with an individual, Soto, to obtain workers for her farm. Soto contacted a third-party, Garcia, to assist in obtaining the workers. Id. at 1495. Garcia did so. Id. at 1495-96. Baker did not know that Soto would have Garcia assist him, but after Garcia located workers he advised Baker of this, and she arranged to have them brought to work at her farm. Id. at 1496. The court wrote: "Baker's claim that she did not know that Roberto Soto would involve Garcia in the process does not require the Court to find that Garcia did not act on Baker's behalf." Id. at 1503. The court reasoned that Baker authorized Soto to obtain workers and did not limit his authority to do so in any manner, did not object to Garcia's involvement once she knew of it, and accepted the benefit of Garcia's efforts by hiring the workers he found. Id.; see also Bueno, 829 F.2d at 1384 (holding defendants could not avoid liability under the "family business" exemption of the AWPA by arguing they did not explicitly authorize others to perform farm labor contracting activities on their behalf when they accepted the benefit of migrant labor brought to their farm through the efforts of other workers).

Similarly, in the instant case, the Benters hired Mike Gomez to recruit and acquire workers, and there is no evidence that they limited the manner by which he was to recruit such workers. There is no indication in the record whether or not the Benters knew of the involvement of Mario Gomez or Chris Mendoza in assisting Mike Gomez. But by hiring the Cardenas family workers, the Benters did accept the benefits of Mario's and Chris's efforts in recruiting the Cardenas workers and Chris's transportation of them from Texas to Indiana. In any event, it is undisputed that Mike Gomez reaffirmed the terms and conditions that Mario Gomez had initially offered the Cardenas workers and did so before they left Texas to come to Indiana to work for the Benters. For this reason alone, the court must consider whether the Benters can be held liable under agency principles for the lack of written disclosures made to the Cardenas Worker Plaintiffs.

The court easily concludes that the disclosure of the terms and conditions of employment comes within the usual and ordinary scope of recruiting workers for employment. The record has no evidence as to whether the Plaintiffs were ignorant of Mike Gomez's violation of the Benters' instructions and that he exceeded his authority.

Though it is quite possible that the Benters could be held liable under agency principles for Mike Gomez's failure to provide the required written disclosures to the Worker Plaintiffs, the court cannot make that determination on the state of the record. There are genuine issues of fact regarding Mike Gomez's agency. Therefore, the Plaintiffs' motion for partial summary judgment should be DENIED on the claim that the Benters failed to provide the required written disclosures to each Worker Plaintiff at the time of his or her recruitment in violation of 29 U.S.C. § 1821(a).

E. False and Misleading Information Regarding Terms and Conditions of Employment Under § 1821(f)

The Plaintiffs allege that they were given false and misleading information concerning the terms and conditions of their employment in violation of the AWPA. The Benters move for summary judgment on this claim; the Plaintiffs, however, do not move for partial summary judgment on this claim. Section 1821(f) provides in pertinent part:

No . . . agricultural employer . . . shall knowingly provide false or misleading information to any migrant agricultural worker concerning the terms, conditions, . . . of agricultural employment required to be disclosed by subsection (a), (b), (c), or (d) of this section.

The uncontradicted evidence establishes that when the Benters hired Mike Gomez they gave him a written document containing the terms and conditions of employment for the workers he was hired to recruit. Nevertheless, when he recruited the Worker Plaintiffs he offered them certain terms and conditions of employment that were not listed on the document the Benters had given him. The record compels the conclusion that his offer of terms and conditions not enumerated by the Benters had to have been knowingly made and, in fact, was false. Resolution of this claim against the Benters, however, turns upon the question of whether the Benters can be held responsible for Mike Gomez's actions. As there are genuine issues of material fact regarding Mike Gomez's agency, the Benters' motion for summary judgment on the claim that they gave false and misleading information to the Plaintiffs regarding the terms and conditions of their employment in violation of 29 U.S.C. § 1821(f) should be DENIED.

F. Compliance with Terms of Working Arrangement Under § 1822(c)

The Plaintiffs claim the Benters failed to comply with the working arrangement they had made with the Plaintiffs. The Benters move for summary judgment on this claim; the Plaintiffs' motion for partial summary judgment does not address this claim.

Section 1822(c) states that "[n]o . . . agricultural employer . . . shall, without justification, violate the terms of any working arrangement made by that contractor, [or] employer . . . with any migrant agricultural worker." 29 U.S.C. § 1822(c). The Plaintiffs' alleged violations of section 1822(c) are similar to those made under section 1821(f). The record establishes that the Worker Plaintiffs were promised certain terms and conditions of employment by Mike Gomez, but the actual terms and conditions of employment were quite different. Because the record with all reasonable inferences drawn in favor of the Plaintiffs could support a finding that Mike Gomez was acting within the scope of his agency for the Benters in promising the terms and conditions of employment, the trier of fact could find that his promises were a "working arrangement" made by the Benters. See Castillo, 96 F. Supp.2d at 612-13. Therefore, the Benters' motion for summary judgment on the claimed failure to comply with the working arrangement with Plaintiffs in violation of 29 U.S.C. § 1822(c) is DENIED.

G. Payment of Wages Owed When Due Under § 1822(a)

The Plaintiffs claim the Benters failed to pay each Worker Plaintiff the wages owed when due, including payment of the employer's share of Social Security. The Benters move for summary judgment on this claim, and the Plaintiffs seek partial summary judgment on this claim.

Section 1822(a) states that "[e]ach farm labor contractor, [or] agricultural employer . . . which employs any migrant agricultural worker shall pay the wages owed to such worker when due." 29 U.S.C. § 1822(a). "`[F]ailing to pay the employer's share of an agricultural worker's FICA tax violates 29 U.S.C. § 1822(a). . . .'" Elizondo v. Podgorniak, 70 F. Supp.2d 758, 777 (E.D.Mich. 1999) (quoting Sanchez v. Overmyer, 845 F. Supp. 1183, 1187 (N.D.Ohio. 1993)).

The Benters argue that the Plaintiffs have no valid claims regarding the method or amount of wages paid based on: (1) accord and satisfaction, (2) estoppel, and (3) waiver.

The Benters have cited not a single case in which these defenses were held proper as against AWPA or FLSA claims. Cases have held that these affirmative defenses are unavailable as against alleged violations of the AWPA and the FLSA. See D.A. Schulte, Inc., v. Gangi, 328 U.S. 108, 114-15 (1946) ("neither wages nor the damages for withholding them are capable of reduction by compromise" under the FLSA); Brooklyn Sav. Bank v. O'Neill, 324 U.S. 697, 706-07 (1945) (rights to minimum wage under the FLSA cannot be waived); Reich v. Stewart, 121 F.3d 400, 407 (8th Cir. 1997) (individual cannot waive entitlement to FLSA benefits); Soto v. Franklin A. McLean Sons Farms, Inc., 20 F. Supp. 901, 912 (E.D.N.C. 1998) (holding that defenses of contributory negligence, fellow servant doctrine, assumption of risk, waiver and estoppel are inapplicable to actual damages claims under AWPA); cf. Castillo, 96 F. Supp.2d at 638 n. 71 ("`It is beyond question that workers cannot waive their rights under the FLSA, even by agreement.'") (quoting Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1411 n. 4 (5th Cir. 1990)).

That the Benters failed to pay their share of the Worker Plaintiffs' FICA taxes when due is undisputed, which violated § 1822(a). That the Benters subsequently paid the FICA taxes and corrected each Worker-Plaintiffs' W-2s, rather than absolving the Benters of liability, is a factor to be considered by the court in determining the Worker Plaintiffs' damages. See Castillo, 96 F. Supp. at 627 (de minimis nature of violation of AWPA's transportation provisions to be considered in determining damages), 629 (mere technical violations of AWPA's pay statement requirements would be considered as a factor in fashioning damages). It is noted that the AWPA affords workers a private right of action for each violation and authorizes up to $500 in statutory damages per plaintiff per violation. See 29 U.S.C. § 1854(c)(1). Therefore, the Plaintiffs' motion for partial summary judgment on the wage claim under § 1822(a) is GRANTED and the Benters' motion for summary judgment on this claim is DENIED.

H. Pay Records and Pay Statements Under § 1821(d)

It is alleged that the Benters did not make, keep and preserve pay records as required by 29 U.S.C. § 1821(d)(1) and did not provide each worker with itemized pay statements as required by 29 U.S.C. § 1821(d)(2). The Plaintiffs seek partial summary judgment on these claims, and the Benters seek summary judgment.

Section 1821(d) provides in pertinent part:

Each . . . agricultural employer . . . which employs any migrant agricultural worker shall —

(1) with respect to each such worker, make, keep, and preserve records for three years of the following information:

(A) the basis on which wages are paid;

(B) the number of piecework units earned, if paid on a piecework basis;

(C) the number of hours worked;

(D) the total pay period earnings;

(E) the specific sums withheld and the purpose of each sum withheld; and

(F) the net pay; and

(2) provide to each such worker for each pay period, an itemized written statement of the information required by paragraph (1) of this subsection.

The record contains no evidence that the Benters made, kept or preserved pay records or pay statements for each Worker Plaintiff. Instead, the record establishes that the Benters made, kept and preserved records regarding the work of each family. Such record-keeping has been held to violate the AWPA's requirements. See Rivera v. Adams Packing Ass'n, 707 F.2d 1278, 1282 (11th Cir. 1983); Cruz v. Vel-A-Da, Inc., No. 3:90CV7087, 1993 WL 659255, at *4 (N.D.Ohio. Jan. 8, 1993); Osias v. Marc, 700 F. Supp. 842, 844 (D.Md. 1988). Similarly, the Benters violated the AWPA by failing to provide to each worker for each pay period an itemized statement of the information required in § 1821(d)(1). Therefore, the court finds that the Plaintiffs' motion for partial summary judgment should be GRANTED on the pay records and pay statements claims and the Benters' motion should be DENIED as to said claims.

I. Housing Violations Under § 1823(a) and (b) and § 1821(c)

The Plaintiffs claim that the Benters violated the housing provisions of the AWPA found at 29 U.S.C. § 1823(a) and (b) and § 1821(c). The Benters move for summary judgment on all claimed violations of the AWPA's housing provisions. The Plaintiffs move for partial summary judgment on their claims regarding health and safety standards under § 1823(a) and certification under § 1823(b) only.

The AWPA incorporates substantive federal and state safety and health standards into its migrant worker protections. 29 U.S.C. § 1823(a); 29 C.F.R. § 1910.142 et seq.; 20 C.F.R. § 654.406 et seq. Section 1823(a) provides:

Except as provided in subsection (c) of this section, each person who owns or controls a facility or real property which is used as housing for migrant agricultural workers shall be responsible for ensuring that the facility or real property complies with substantive Federal and State safety and health standards applicable to that housing.

(Emphasis added); see also 29 C.F.R. § 500.130(a). Section 1823(b) provides in pertinent part:

. . . [N]o facility or real property may be occupied by any migrant agricultural worker unless either a State or local health authority or other appropriate agency has certified that the facility or property meets applicable safety and health standards. No person who owns or controls any such facility or property shall permit it to be occupied by any migrant agricultural worker unless a copy of the certification of occupancy is posted at the site. The receipt and posting of a certificate of occupancy does not relieve any person of responsibilities under subsection (a) of this section.

This section does not apply to any person who, in the ordinary course of that person's business, regularly provides housing on a commercial basis to the general public and who provides housing to migrant agricultural workers of the same character and on the same or comparable terms and conditions as is provided to the general public.

Each . . . agricultural employer . . . which provides housing for any migrant agricultural worker shall post in a conspicuous place or present to such worker a statement of the terms and conditions, if any, of occupancy of such housing.

In their initial brief, the Benters contend that the Plaintiffs' housing claims fail by operation of Section 1821(c). In their reply brief, however, the Benters acknowledge that they cannot avail themselves of subsection (c). Instead, they argue that they did not violate the housing provisions because they neither owned nor controlled the Knights Inn where the Plaintiffs stayed.

29 C.F.R. § 500.130, cited by the Benters, states in pertinent part:

(b) A[n] . . . agricultural employer . . . is deemed an "owner" of a housing facility or real property if said person has a legal or equitable interest in such facility or real property.

(c) A[n] . . . agricultural employer . . . is in "control" of a housing facility or real property regardless of the location of such facility, if said person is in charge of or has the power or authority to oversee, manage, superintend or administer the housing facility or real property either personally or through an authorized agent or employee, irrespective of whether compensation is paid for engaging in any of the aforesaid capacities.

The Plaintiffs argue, rather, that the Benters assumed control over the Plaintiffs' housing by paying for the hotel costs. The court, however, concludes that by arranging and paying for housing for the Plaintiffs, the Benters did not control such housing. Merely arranging and paying for housing is not equivalent to overseeing, managing, superintending or administering the housing. See Castillo, 96 F. Supp.2d at 618-19 (holding that agricultural employer did not control housing of migrant agricultural workers where it secured housing for workers, advanced their security deposits and first month's rent and negotiated terms and conditions of the workers' leases). The Plaintiffs have cited no authority to the contrary. Moreover, a reading of the AWPA in its entirety supports this conclusion. Section 1823(a) is applicable to any person who owns or controls a facility or real property used as housing for migrant agricultural workers, whereas, section 1821(c) requires only that an agricultural employer provide housing for any migrant agricultural worker. The court presumes Congress intended this difference.

The Plaintiffs rely on 29 C.F.R. § 500.130(a) to establish that the Benters by arranging and paying for the Plaintiffs' housing controlled said housing. The court, however, remains unpersuaded that the interpretation of § 1823(a) found in 29 C.F.R. § 500.130(a) is entitled to any deference. Congress expressly authorized the Secretary of Labor to promulgate rules and regulations implementing the AWPA, see 29 U.S.C. § 1861, but such regulations are entitled to deference "so long as [they are] based on a reasonable reading of the statute." United States v. Dierckman, 201 F.3d 915, 923 (7th Cir. 2000); see Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984).

The court cannot conclude that § 500.130(a) is based on a reasonable interpretation of Section 1823(a). The regulation states that any person "involved in providing housing for any migrant agricultural worker" is responsible for ensuring that the facility or real property meets applicable housing standards. 29 C.F.R. § 500.130(a) (emphasis added). This provision impermissibly expands the breadth of § 1823(a) which limits liability to a person who "owns or controls" such facility or real property. 29 U.S.C. § 1823(a) (emphasis added). As stated, in drafting the AWPA the Congress employed the more restrictive phrase "owns or controls" in § 1823(a) which governs compliance with safety and health standards, whereas, it employed the broader phrase "provides housing" in § 1821(c) which imposes posting and notice requirements upon housing providers. The court can presume that the Congress intended to use the broader phrase in the latter provision and the more restrictive phrase in the former provision. The Secretary's interpretation of § 1823(a) in 29 C.F.R. § 500.130(a) impermissibly expands on congressional intent.

Further, the regulation itself is ambiguous. Though the regulation states that merely "providing" housing renders a person liable, its exemplification of what "providing" means leads to a more limited interpretation of the term. It gives the following as example of the meaning of providing housing: "when an agricultural employer owns it [the housing] and a farm labor contractor or any other person operates it. . . ." 29 C.F.R. § 500.130(a). Thus, by exemplification the regulation itself seems to suggest that one must own or operate housing to be responsible for ensuring compliance with applicable health and safety standards. Moreover, another regulation promulgated by the Secretary under the AWPA supports this conclusion. That regulation expressly states:

Responsibility for compliance with the housing safety and health provisions of section 203 of the Act and §§ 500.130 through 500.135 of these regulations is imposed upon the person (or persons) who owns or controls a facility or real property used as housing for migrant agricultural workers.

The Plaintiffs also rely on an Indiana state regulation concerning agricultural labor camps. The Benters respond that the Knights Inn was not an agricultural camp because it was not established for and is not operated for migrant farm workers. This argument is persuasive. The Indiana Administrative Code defines "agricultural labor camp" as "one (1) or more buildings or structures . . . together with the land appertaining thereto, established, operated, and used as living quarters for five (5) or more adult seasonal or temporary workers engaged in agricultural activities. . . ." 410 IND. ADMIN. CODE § 6-9-1(c). This provision is written in the conjunctive and, therefore, to constitute an agricultural labor camp, a building or structure must be (1) established, (2) operated, and (3) used as living quarters for 5 or more adult seasonal or temporary agricultural workers. Though the Inn meets the third criteria, there is no evidence that it was established for and operated for such workers. Therefore, the court concludes that the Knights Inn is not an "agricultural labor camp" as defined by the Indiana regulations.

The court concludes that with respect to the Plaintiffs' claims regarding housing health and safety standards under § 1823(a) and certification requirements under § 1823(b), the Plaintiffs' motion for summary judgment should be DENIED and the Benters' motion for summary judgment should be GRANTED.

The Plaintiffs also allege violations of the posting and notice requirements under 29 U.S.C. § 1821(c), though their motion for summary judgment does not seek summary judgment on this claim. The Benters' motion, however, does address all claims under AWPA's housing provisions. The Castillo court held that an agricultural employer that neither owned nor controlled the housing for migrant agricultural workers provided such housing. See Castillo, 96 F. Supp.2d at 62. The court reached this conclusion based on the facts that the employer arranged for the workers' housing and paid their security deposits and first month's rent. Id. Similarly, in the instant case, the Benters arranged for and paid for the Plaintiffs' housing at the Knights Inn. Thus, it appears they may be held liable under § 1821(c) provided the Plaintiffs could prove a violation of that provision. The record, however, is silent with respect to whether the terms and conditions of occupancy of the rooms at the Knights Inn were posted in a conspicuous place or otherwise presented to the Plaintiffs. Therefore, the court is unable to resolve this claim on summary judgment.

Accordingly, the Benters' summary judgment motion is DENIED on the claimed violation of 29 U.S.C. § 1821(c).

J. Transportation of the Cardenas Family, § 1841(b)

It is claimed that the Benters violated 29 U.S.C. § 1841(b) with regards to the Cardenas Plaintiffs' transportation. It is undisputed that the cargo van used to transport the workers from Texas to Indiana did not comply with all applicable Federal safety regulations. The real issue here is whether the Benters may be held liable for any transportation violation.

Section 1841(b) provides in pertinent part:

When using, or causing to be used, any vehicle for providing transportation to which this section applies, each agricultural employer . . . shall —

(A) ensure that such vehicle conforms to the standards prescribed by the Secretary under paragraph (2) of this subsection and other applicable Federal and State safety standards. . . .

The Benters deny any involvement in transporting the Cardenas either from Texas to Indiana or from the Knights Inn to their farm. They cite to 29 C.F.R. § 500.70(c) to support their position. That regulation provides:

Transportation related protections. Responsibility for compliance with the motor vehicle safety . . . provisions of section 401 of the Act and . . . these regulations is imposed upon the person or persons using or causing to be used, any vehicle for transportation of migrant or seasonal agricultural workers. . . . [T]hese regulations do not impose responsibility on an agricultural employer . . . for a farm labor contractor's failure to adhere to the safety provisions provided in these regulations when the farm labor contractor is providing the vehicles and directing their use. However, when an agricultural employer . . . specifically directs or requests a farm labor contractor to use the contractor's vehicle to carry out a task for the agricultural employer . . . such direction constitutes causing the vehicle to be used and the agricultural employer . . . is jointly responsible with the farm labor contractor for assuring that the vehicle meets the . . . safety and health provisions of these regulations. In all cases a person using a farm labor contractor is required to take reasonable steps to determine that the vehicle used by the farm labor contractor is authorized to be used for transportation as prescribed in Section 402 of the Act and § 500.71 of these regulations.

The Benters, however, might be liable for the alleged transportation safety violations under two different theories relied upon by the Plaintiffs. First, two courts have held that an employer causes the transportation of workers when transportation is "a necessary element in obtaining workers." See Castillo, 96 F. Supp.2d at 624; Saintida v. Tyre, 783 F. Supp. 1368, 1373 (S.D.Fla. 1992). In both Castillo and Saintida, the record established that the workers did not have their own vehicles but relied upon the farm labor contractors for transportation to the job site, and public transportation was unavailable to the job sites. See Castillo, 96 F. Supp.2d at 624; Saintida, 783 F. Supp. at 1373. In addition, in Case Farms the defendant arranged for the transportation of workers because it knew of the difficulties its out-of-state workers had getting to the job site. See Castillo, 96 F. Supp.2d at 624.

The Plaintiffs claim the transportation of the Cardenas Plaintiffs was a necessary element because the Cardenas family lacked any access to a vehicle. Based on the record, "without this assistance with transportation, the [Cardenas] workers would not [have] come to work" for the Benters. See Castillo, 96 F. Supp.2d at 624 n. 55. This supports the conclusion that the transportation of the Cardenas family was a necessary element in obtaining the Cardenas workers for the Benters. See id. at 624; Saintida, 783 F. Supp. at 1373. It is unclear, however, whether under Castillo and Saintida transportation must be a necessary element in obtaining all the workers for an employer, and there is no evidence in the record which could support a finding that transportation was a necessary element in obtaining all the Worker Plaintiffs. Thus, it cannot be said with certainty that the Benters caused the transportation of the Cardenas Plaintiffs.

The Benters are more likely to be liable for transportation violations under agency principles. Here again there are genuine issues of material fact precluding summary judgment in favor of the Plaintiffs. If the trier of fact were to find that Mike Gomez acted within the scope of his agency for the Benters in arranging for Chris Mendoza to transport the Cardenas Plaintiffs from Texas to Indiana, it could find that the Benters through their agent provided the cargo van and directed its use. See Castillo, 96 F. Supp.2d at 624. It should be noted that the only evidence of any transportation safety violation pertains to the cargo van used to transport the Cardenas family from Texas to Indiana. An applicable federal regulation requires that each worker have a seat, 29 C.F.R. § 500.105(b)(3)(vi)(D), and the cargo van lacked seats.

Because there are genuine issues of material fact regarding the Benters' liability for any transportation safety violations, the court finds that the Plaintiffs' motion for summary judgment should be DENIED and the Benters' motion DENIED on the claimed violations of transportation safety provisions under the AWPA as pertaining to the Cardenas Plaintiffs.

K. Mike Gomez's Registration as a Farm Labor Contractor Under § 1842

The Plaintiffs allege Mike Gomez was not properly registered and the Benters used his services without first determining that he was properly registered in violation of 29 U.S.C. § 1811 and 1842. Under Section 1842:

[n]o person shall utilize the services of any farm labor contractor to supply any migrant . . . agricultural worker unless the person takes reasonable steps to determine that the farm labor contractor possesses a certificate of registration which is valid and which authorizes the activity for which the contractor is utilized.

The record establishes that Mike Gomez was, and the Benters determined that he was, a properly registered farm labor contractor when he worked for them. However, Gomez's certificate of registration did not authorize him to transport migrant agricultural workers; he did transport the Cardenas family; and the Benters benefitted from that transportation. Whether the Benters may be held liable under Section 1842 turns on whether they may be said to have "utilized" Mike Gomez for the activity at issue, that is, the transportation of the Cardenas Plaintiffs. This court could find only one reported decision addressing what it means to utilize the service of a farm labor contractor, see Charles v. Burton, 169 F.3d 1322 (11th Cir.), reh'g denied, 182 F.3d 938 (11th Cir.), cert. denied Burton v. Charles, 120 S.Ct. 191 (1999). In that case, the court concluded that a produce packinghouse and its president did not "utilize" the services of farm labor contractor and were not liable for failing to verify the contractor's registration, where they neither directed, controlled or supervised the workers nor hired the farm labor contractor. Id. at 1334. In contrast, the Benters did hire Mike Gomez as their farm labor contractor. Thus, Charles provides little guidance to this court. The question presented here is whether the Benters utilized a specific service provided by Gomez-the transportation of the Cardenas Plaintiffs.

The court concludes that the answer to that question depends upon agency principles. The court does not believe that by merely hiring Gomez as a farm labor contractor the Benters may be held liable under the AWPA for all of his other activities regardless of whether or not those activities were authorized by the Benters. Cf. Metzler v. Lykes Pasco, Inc., 972 F. Supp. 1438, 1442 (S.D.Fla. 1997) (stating that "[a]ny person who hires a farm labor contractor must take reasonable steps to ensure that the contractor has a valid certificate authorizing it to perform the specific jobs for which the contractor is being hired."). As there are genuine issues of material fact regarding Mike Gomez's agency, the Plaintiffs' motion for partial summary judgment should be DENIED on their claim that the Benters utilized Mike Gomez for farm labor contracting services for which he was not properly authorized, and the Benters' motion for summary judgment on this claim also is DENIED.

L. FLSA Claims

The Plaintiffs allege violations of the FLSA, claiming the Benters did not pay them the minimum hourly wage and did not pay each of the workers individually, but rather paid one check to the head of each family. The Plaintiffs seek partial summary judgment on their FLSA claims. The Benters seek summary judgment on the claims as well.

In 1990 the USDOL took the position that making "one payment to the head of the family or other family member, rather than to each individual worker" "would not comply with the provisions of the Act [the AWPA], which requires that the employer pay each, covered, non-exempt employee not less than the minimum wage for all hours worked." (USDOL Op. Ltr., Sep. 25, 1990 at 2.) The Benters argue the opinion of the DOL should be stricken and has no force of law, but the DOL's interpretations in opinion letters "are `entitled to respect,' . . . to the extent that they are persuasive. . . ." Christensen v. Harris County, 120 S.Ct. 1655, 1657 (2000) (quoting Skidmore v. Swift Co., 323 U.S. 134, 140 (1944)). The DOL's opinion is persuasive. It is consistent with the language in the FLSA which requires "[e]very employer shall pay to each of his employees . . . wages at the following rate . . . not less than $4.25 an hour during the period ending on September 30, 1996. . . ." 29 U.S.C. § 206(a).

Further, as stated previously, there is a genuine issue of material fact as to whether the Benters paid each of the workers in the Cardenas and Pacheco families the minimum wage. On one hand, the Benters have presented evidence, namely, their own affidavits, copies of cancelled checks and documentation of the hours worked, that they paid each of the Worker Plaintiffs the minimum wage. The Plaintiffs, however, have produced evidence that they worked more hours than alleged by the Benters. Though the Benters argue that the affidavit testimony of Eulalia Cardenas and Raul Pacheco is speculative and conclusory, the statements made in their Second Supplemental Affidavits are not conclusory and provide the underlying facts for the conclusion that they worked more hours than alleged by the Benters. Thus, the Plaintiffs have raised a genuine issue of material fact as to whether the Cardenas and Pacheco Worker Plaintiffs were paid the minimum wage.

There is evidence, though, that the Espinoza Worker Plaintiffs were paid at least the minimum wage by the Benters. Therefore, the Benters' motion for summary judgment is GRANTED as to the FLSA minimum wage claim of the Espinoza Worker Plaintiffs, but DENIED as to the FLSA minimum wage claims of the Cardenas and Pacheco Worker Plaintiffs, and the Plaintiffs' motion for partial summary judgment on the FLSA minimum wage claims of all Plaintiffs is DENIED. Because the uncontradicted record establishes that the Benters did not pay each Worker Plaintiff individually, but rather, made one payment to each family, the Benters' motion for summary judgment is DENIED as to the claim that each worker was not paid individually, and the Plaintiffs' motion for partial summary judgment is GRANTED on this claim.

M. FICA Claim

The Plaintiffs allege the Benters violated the FICA by failing to pay the employer's share of social security for each worker. The Benters and the Plaintiffs seek summary judgment on this claim.

That the Benters did violate the FICA by not paying the employer's share of each Worker Plaintiffs' social security is undisputed. Though the Benters argue the violation is technical and has been corrected, it is, nevertheless, a violation. Therefore, the court finds that the Benters' motion for summary judgment should be DENIED on the FICA claim, and the Plaintiffs' motion for partial summary judgment should be GRANTED on this claim.

IV. Conclusion

For the foregoing reasons,

(1) the Benters' motion to strike is DENIED;

(2) "Benter Farms" is DISMISSED as a Defendant to this action;

(3) the Benters' motion for summary judgment will be GRANTED on the Plaintiffs' housing claims under 29 U.S.C. § 1823(a) and (b) and the FLSA minimum wage claim of the Espinoza Worker Plaintiffs, but DENIED in all other respects;

(4) the Plaintiffs' motion for partial summary judgment will be GRANTED on the claim of a failure to pay the wages owed when due under § 1822(a); the pay records and pay statements claims under § 1821(d); the claim that each worker was not paid individually in violation of the FLSA; and the FICA claim; but DENIED in all other respects.

The following claims remain for trial:

(1) failure to provide written disclosures of the terms and conditions of employment at the time of recruitment in violation of § 1821(a);

(2) giving false or misleading information in violation of § 1821(f);

(3) failure to comply with the terms of the working arrangement in violation of § 1822(c);

(4) breach of employment contract;

(5) failure to post or present each worker with a statement of the terms and conditions of occupancy of the housing in violation of § 1821(c);

(6) using or causing to be used certain vehicles for transportation of the Cardenas family without first ensuring said vehicles met the minimum safety standards in violation of § 1841(b);

(7) utilizing the services of a farm labor contractor not properly registered and authorized to engage in the activities for which he was utilized in violation of § 1842;

(8) the FLSA minimum wage claim of the Cardenas Worker Plaintiffs and the Pacheco Worker Plaintiffs; and

(9) damages on the AWPA failure to pay wages owed when due claim, the AWPA pay records and pay statements claims, the FLSA individual payment claim, and the FICA claim.

Because this entry does not dispose of all claims, no judgment will be entered at this time. Final judgment will be entered following disposition of all remaining claims.

ALL OF WHICH IS ORDERED this 19th day of September 2000.