In reaching my decision I note that many courts have found migrant farm workers to be employees within the meaning of the FLSA. See e.g. Beliz v. W.H. McLeod Sons Packing Co., id., 765 F.2d 1317; Real v. Driscoll Strawberry Associates, Inc., id., 603 F.2d 748; Hodgson v. Griffin Brand of McAllen, Inc., 471 F.2d 235 (5th Cir. 1973), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51; Hodgson v. Okada, 472 F.2d 965 (10th Cir. 1973); Donovan v. Gillmor, 535 F. Supp. 154 (N.D.Ohio 1982). In reaching my decision I am also mindful of the recent decision by the United States Court of Appeals for the Sixth Circuit in Donovan v. Brandel, 736 F.2d 1114 (6th Cir. 1984).
Id. The court further called its factual record "unique," and "strikingly different" from Donovan v. Gillmor, 535 F. Supp. 154 (N.D.Ohio 1982), appeal dismissed 708 F.2d 723 (6th Cir. 1982), which held migrant pickle workers to be employees. Brandel, 736 F.2d at 1120 n. 11. In other words, Brandel did not call Gillmor wrong, just different.
In one case, however, Donovan v. Brandel, the Sixth Circuit affirmed the district court in classifying migrant workers harvesting pickles, under circumstances similar to those here, as independent contractors, not employees. 736 F.2d 1114 (6th Cir. 1984). Even in its own circuit, however, that case has been narrowed and distinguished. Although Donovan v. Gillmor, 535 F. Supp. 154 (N.D.Ohio), appeal dismissed, 708 F.2d 723 (6th Cir. 1982), was decided before Brandel, the pre- Brandel holding in Gillmor was thereafter reexamined by the same district court in 1986. After the Brandel decision was announced in that circuit, the district court reaffirmed its original, inconsistent, holding in an unpublished order.
The record unquestionably demonstrates that the tasks regularly performed by the migrant workers were routine and that they constituted an integral phase of the normal operations of defendants' business. SeeCastillo v. Givens, 704 F.2d at 191; Donovan v. Gilmor, 535 F.Supp. 154, 162 (N.D.Ohio 1982), appeal dismissed, 708 F.2d 723 (6th Cir.1982). The hand harvest field labor of the plaintiffs was only one step in the multi-step production process used by defendants to produce their crops.
Id. at 1120. The court noted that a different result was reached in a district court case involving pickle harvesters, Donovan v. Gillmor, 535 F.Supp. 154 (N.D.Ohio 1982), “upon a record strikingly different tha[n] the thorough and pointed evidence” in the case before the court. Id.
Two district courts have determined they are employees. Brock v. Lauritzen, 624 F. Supp. 966, 968-70 (E.D.Wis. 1985); Donovan v. Gillmor, 535 F. Supp. 154, 160-63 (N.D. Ohio), appeal dismissed, 708 F.2d 723 (6th Cir. 1982). One circuit court of appeals has concluded they are independent contractors.
Under the permanence prong, the duration of the working relationship is not as significant as the number of hours worked and the exclusivity of the working arrangement. Donovan v. Gillmor, 535 F. Supp 154, 162-63 (D.C. Ohio 1982)appeal dismissed, 708 F.2d 723 (6th Cir. 1982); Lauritzen, 835 F.2d at 1537. This is particularly true where the industry is such that work is partitioned among discrete projects, as here, where LPNs are assigned shifts for individual patients.
Id. at 1120. The court also declined to reverse "the contrary result in a similar factual situation in Donovan v. Gillmor, 535 F. Supp. 154 (N.D.Ohio 1982), appeal dismissed, 708 F.2d 723 (6th Cir. 1982)" and commented that the Gillmor decision, "rendered upon a motion for summary judgment, was made upon a record strikingly different that [sic] the thorough and pointed evidence in [the Brandel] case." Id. at 1120 n. 11.
29 U.S.C. § 203(e)(1); Donovan v. Brandel, 736 F.2d 1114, 1117-20 (6th Cir. 1984). See also McLaughlin v. Seafood, Inc., 861 F.2d 450, 452-53 (1988), amended, 867 F.2d 875, 876-77 (5th Cir. 1989); Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1535-39 (7th Cir. 1987), cert. denied, ___ U.S. ____, 109 S.Ct. 243, 102 L.Ed.2d 232 (1988); Donovan v. Gillmor, 535 F. Supp. 154, 159-63 (N.D. Ohio), appeal dismissed, 708 F.2d 723 (6th Cir. 1982). 8. Young is liable to plaintiffs under the FLSA for unpaid minimum wages in the amount of $4,725.20. 29 U.S.C. § 206(a)(1), 215(a)(2), 216(b).
'Linker v. Custom-Bilt Machinery, Inc., 594 F. Supp. 894, 897 (E.D.Pa. 1984); see also, Donovan v. Gillmor, 535 F. Supp. 154, 159 (N.D.Ohio 1982), citing, Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970). 13. At this late date, the Herald's attempt to befriend the Court must fail.