Hamilton GrowersI Incorporated Case ID: 1531943 Hamilton Growers, Incorporated 2775 Ellenton-Norman Park Rd. Norman Park, GA 31771 (229)769-3676 EIN: EX4 CID: 1531943 II. H-2A NARATIVE REPORT COVERAGE: The subject of this investigation is an agricultru'al employer (AGER) who employs workers in the operation of his farm. The Employment and Training Administration certi?ed Hamilton Growers, Inc., rmder case number -0903 6-17688 to bring a maximum of EX4 workers under the H-2A program. The job certi?cation was in effect ??om 03/25/2009 to 12/31/2009. The business is owned and operated by Wanda Hamilton-Tyler and President Kent Hamilton. The ADV for the business was approximately EX 4 for each of the past 3 years. See Ex -l H-2A: The AGER was certi?cation for one H-2A contract (See Ex. -2). EXEMPTIONS H-ZA: None available. STATUS OF COMPLIANCE Prior History: C1D 1082149 H2A Investigation - Investigation was conducted by WHI 7C in 07/2001. There was noted Violation for not paying workers subsistence allowance for transportation. 88 workers were due $5,705.04 in back wages. CMP was computed at $200.00. The CID for this case was 1154504, this case was entered into WHISARD for tracking purposes, the violations were included in CID 1082149 which was Baker Farms. CID 1323834 H2A Investigation - This AGER was previously investigated in 11/2003 the ?eld supervisors not correctly recording actual hours Page 1 Hamilton GrowersI Incorporated Case ID: 1531943 worked. The allegation was unsubstantiated. There were noted violations for item 3, 8, and 11. CMP was computed at $500.00, but not assessed since it was less than the Regional threshold. (See Exhibit D-9). Related Cases FLC Margarita Cardenas CID 1544572 received from a The disclosed that there were possible minimum wage and overtime violations with this AGER. Statements obtained during the investigation could not substantiate the allegations. Reason for Investi ation. This com liance action was initiated a The period of investigation is 03/25/2008 to 06/29/2009. The AGER pays both by the hour and on a piece rate basis which varies depending on the crop being harvested (See Ex. -2 for list of piece rates). The AGER has labor camps at the following locations; 125 Las Vegas Lane, and the facilities are divided among 3 major buildings, two residential/dormitory buildings and one cafeteria. The AGER provides 3 meals per day at a cost of $59.40 per week. The meal cost is deducted from the EE's pay; it is re?ected in the check stub. The meal deduction was found to be reasonable. The second housing location is called the Red House camp located on Ellenton-Omega Rd., also located in Norman Park. The third labor camp is on Joe Griffm Road and was allocated for use by FLC Cardenas. The real property where the Las Vegas and Reno camps are located is owned by the AGER. The real property for the Red House camp (Trailers also located on property) is owned by Wanda Hamilton-Tyler's brother and leased to the AGER for the housing of the workers throughout the season. The Joe Griffin camp is also leased to the AGER along with the land usage. There is no charge to the workers for residing in the housing, but the AGER maintains all control/ownership of the housing. The Colquitt County Tax Commissioner's of?ce (Moultn'e, GA) veri?ed the ownership of the real property where the business operation is located in Norman Park, GA listed above. See Exh D-2a Disclosure statements are used, pay stubs are also used. The workers received a copy of the H-2A Page 2 Hamilton Growers, Incorporated Case ID: 1531943 contract when they arrived at the camp. The AGER pays the workers on a weekly basis, pay day is on Saturdays. The work week is from Sunday to Saturday. There is a one week lag time for the processing of the payroll. Time cards are used by the ER. The minimum paid an EE is $7.25, for the current job certification and $8.53 for the previous 2008 job certification. Overtime is not paid, the AGER does not pack or process produce from other farmers. The water samples were up to date. The AGER has sufficient insurance to meet the requirements for the transportation of workers. There are no minors employed at this location (See Ex. D-3 D-6). Joint Employment: There are no Joint Employment or Joint Responsibility issues in this case. VIOLATIONS: H-2A 1987 Rule Job Certification C-08184-14115 Item 6: Failure to pay ¾ guarantee (20 CFR 655.104(i)(1):: The AGER failed to ensure that the H-2A workers were paid the required ¾ guarantee of the hours for which the job certification was in effect from 03/25/2008 to 12/31/2008. The AGER failed to ensure the workers were offered the minimum hours required on the job certification to meet the minimum guarantee of the job certification. COMPUTATION The computations for the ¾ guarantee for 1987 Rule were done as follows. The total weeks for the job certification were provided and payroll for each worker. Each workers individual starting day was used to properly compute the weeks the employee actually worked the offered hours on the job certification. With the actual weeks worked, the sufficient amount of work hours for the ¾ guarantee could be obtained, excluding all federal non worked holidays and Sundays from the total number of hours worked. From that calculation the ¾ guarantee was obtained. If the employee was found to be deficient or lacking hours worked the additional monies were computed for uncompensated hours for the employee at the AWER. See A and D-8 Exhibits. Page 3 Hamilton Growers, Incorporated Case ID: 1531943 Mitigating Factors used for Propsed CMPs: Factor 2: The number of affected workers is less than 50% of the covered workforce. The AGER had 480 workers on his payroll and only 14 workers were found due back wages for this violation. Factor 4: Employer has made a “good faith” effort to comply. The AGER has paid the back wages to the workers and provided the Agency with proof of payment. Factor 5: Explanation offered by Employer for violation is both plausible and verifiable. The AGER stated his farming operation had a very bad year in 2008 and new it may affect some workers ¾ guarantee but did agree to comply and the pay all back wages. Factor 6: Employer has come into compliance and given assurance of future compliance. The review of the completed 2009 job order disclosed no violation for ¾ guarantee or any H- 2A provisions. Factor 7: The employer's potential gain is minimal and loss/harm to the employees is also minimal. The back wages are $9,920.99 for 14 affected workers for this job certification. The CMP is computed at $7,000.00 ($1,000.00 x employees x 50% (5 applicable mitigating factors 10% ea.)). This CMP computation was completed in the Whisard data system that has preset parameters for adjusting CMPs and applying a percent reduction where applicable. Total CMP's proposed for 1987 violations: $7,000.00 2008 H-2A Rule Item 17: Failure to ensure each driver of a transportation vehicle has a valid license. Mrs. Flowers provided the names listed below and drivers licenses of the employees they used as designated drivers for the buses used to transport the workers from the camp to the field and from field to field. The traveling distance would be within a 75 mile radius. The violation being sited is for workers who did not have the correct Class CDL licenses with the proper endorsement to drive the buses transporting more than 16 passengers. To further clarify the compliance under state regulations mentioned in this section, the State of Georgia Department of Motor Vehicles requires Page 4 Hamilton Growers, Incorporated Case ID: 1531943 that applicants must comply with the minimum Federal requirements as set forth in Federal Motor Carrier Safety Regulations (FMCSR), Sec. 391-41 for physical qualification for drivers with a commercial driver's license. The FMCSR Section 391-41(a) states that a person shall not drive a commercial motor vehicle unless he/she is physically qualified to do and, except as in Sec. 391-67 (Farm vehicle drivers of articulated commercial motor vehicles – vehicles used to transport either agricultural products, farm machinery, farm supplies, or both, to or from a farm, but not used for people), has on his/her person the original, or photographic copy, of a medical examiner's certificate that he/she is physically qualified to drive a commercial motor vehicle. The driver's in possession of a CDL must also have the proper endorsement “P” on the license See Exhibit D-6, D-7. Discrepancies are as follow: 1. 2. 3. 4. 5. 6. 7C Mitigating Factors used for Propsed CMPs: Factor 1: There was no previous history of violating H-2A Requirements. Factor 2: Number of affected workers is less than 50% of the covered workforce. The AGER EX 4 had EX 4 workers on his payroll and the drivers had noted driver license class CDL and endorsement requirements discrepancies. Factor 3: Violation has no direct effect on wages, worker housing or transportation S&H. The license discrepancies did not pose a potential or immediate threat to the safety of the workers. Factor 5: Explanation offered by the AGER for the violation is both plausible and verifiable. The AGER was provided guidance by his job order Agent that drivers could have a Class C license since the driver was operating farm equipment. Factor 7: AGERs potential gain from violation is minimal and loss/harm to employees is also Page 5 Hamilton Growers, Incorporated Case ID: 1531943 minimal. Based on the information provided by the Agent to the AGER, all licensing, doctors examinations and vehicle inspections had been adhered too for safe operation the buses used by this AGER. The CMP is computed at $2,500.00 ($1,000.00 x 5 employees x 50% (5 applicable mitigating factors 10% ea.)). Item 39: Failed to comply with Employment-Related Laws (20 CFR 655.103(b)): The AGER failed to comply with regulatory requirements for MSPA as noted in a concurrent investigation for this AGER during the time period the workers were engaged to work at Hamilton Growers, Inc., from 06/01/09 to 07/17/09. Mitigating Factors used for Propsed CMPs: Factor 2 Number of affected workers is less than 50% of the covered workforce. There were 44 workers that resided in the housing provided by the AGER to the H-2ALC. The AGERs workforce at the time of the investigation numbered 480. Factor 4 The AGER has made a “good faith” effort to comply. The AGER closed the housing after the H-2ALCs had completed harvest. Factor 6 AGER has come into compliance and given assurances of future compliances. The AGER closed and cleaned up the housing that had been used by the H-2ALC alleviating theS&H violations. The CMP is computed at $700.00 ($1,000.00 x 30% (3 applicable mitigating factors 10% ea.)). Total CMP's proposed for 2008 violations: $3,200.00 IV. DISPOSITION: On 01/26/2010, a JRC teleconference was held with the National Office Farm Team, SE RSOL, SE RO DIR of AG Enforcement., WHI 7C ADD Sneed and WHI 7C The file was discussed for both H-2A and MSPA violations and how to proceed with completing the investigation. It was determined that for MSPA the AGER was solely responsible for the housing Page 6 Hamilton GrowersI Incorporated Case ID: 1531943 violations noted during the investigation. The AGER owned and controlled the housing and the workers staying in the housing were out of status H-2A workers that were bought to his location to pick his crop. The violation was to be cited under MSPA for this reason and not H-2A. WHI was informed that since the AGER had a consent judgment to comply with MSPA (See Exh. D-S) the violation was considered to be aggravated for civil money computations. The H-2A violations were discussed for both 1987 Rule and 2008 Rule for this AGER. It was determined that the following would be cited for the guarantee for 1987 Rule, 2008 Rule had Violations for item 17 for transporting workers with improperly licensed drivers IAW GA State requirements, and Item 39 Employment related laws for not complying with the consent judgment for MSPA. On 07/08/2010, WHI 7C had a teleconference with Dir. of AG Enf C. Mills concerning this ?le and was informed that since the AGERs H-2A contract had been completed for 2009 and the investigation was started in the beginning of that job order a review was needed for guarantee for compliance. WHI obtained the payroll from the AGER and the guarantee review disclosed compliance for the 2009 completed job order for the AGER for the job contract. On 08/26/2010, a ?nal conference was conducted at the AGER's farm located at 2775 Ellenton-Norman Park Rd., Norman Park, GA 31771. In attendance at the final conference were Kent Hamilton, Wanda Hamilton-Tyler and Mrs. Colene Flowers. WHI 7C represented the Wage and Horn Division. The conference began with a discussion of the H-2A violations. The AGER (Kent Hamilton) was informed that the business was being cited for H-2A violations for Item 6 Failure to pay guarantee under the 1987 Rule, Item 17 Transportation failed to meet and Item 39 Failure to comply with employment related laws (MSPA). The guarantee violation was for the 2008 completed job order and the AGER was informed that after a review of the payroll 14 workers had not been paid/ guaranteed wages on the job order. Mr. Hamilton and Mrs. Flowers stated they felt that it would be some of the workers that had not met the guarantee because the farming business had not had a good year. Mr. Hamilton stated that any wages due to any worker would be paid to them for compliance. It was explained to Mr. Hamilton that the drivers (Item 17 under 2008 Rule) for the buses had to be properly licensed and meet the federal (Federal Motor Carrier Safety Regulations (FMC SR) Sec and state standards for operating and transporting workers. The AGERs agent Page 7 Hamilton Growers, Incorporated Case ID: 1531943 had informed him and therefore he followed the guidance that as long as the drivers were operating farm equipment a Class C driver license was all that was required. WHI informed the AGER that all drivers transporting workers in the buses he used had to have a Class A CDL license were properly licensed. Mr. Hamilton and Mrs. Flowers stated that it was understood and that they will ensure that the drivers were properly licensed for the upcoming season. Mr. Hamilton was informed that it was being noted that Item 27 was reviewed but not cited for the wage rate discrepancy for the packing of the eggplant. It was not cited since the wage payments for the employees were all under $20.00 and de minimis under the law per JRC guidance. The workers were paid the amounts due for the discrepancy. The workers were paid $7.25 and the disclosed rate was $8.51 for packing eggplant. The conference continued with the discussion of the housing violations and the condition of the housing when inspected during the investigation. Mr. Hamilton was informed that MSPA standards applied to the housing for this investigation. MSPA applied because the H-2ALC did not have the AGERs location on her current job order and had moved the workers to his location to perform work. This action by the H-2ALC caused the workers to be “out of status” while performing work at his location. This meant that MSPA standards applied to the workers while residing in his housing and working at the aAGERs location. Mr. Hamilton stated that he left the responsibility of ensuring the housing was clean and up to standard to H-2ALC Cardenas. As busy as his summer growing season was it was hard to constantly monitor the housing. WHI explained to Mr. Hamilton that as the AGER it was his responsibility to ensure the housing was up to standard. Mr. Hamilton was informed by WHI that under the consent judgment for MSPA dtd 12/13/2006 he assured compliance. The condition of the housing was in no way compliant for the investigation. To remedy and correct the housing problems the housing used by H-2ALC Cardenas had been closed and not used when the workers left on 07/17/2009. After a firm agreement for future compliance, Mr. Hamilton was presented with the back wage liability for the ¾ guarantee wages due to the 14 employees. Mr. Hamilton stated that the wages would be paid to the workers. The WH-56 was signed and a copy was provided to him. A copy has also been placed in the file. The AGER was provided with WH-58s for proof of payment. The AGER and Mrs. Colene Flowers were provided with instructions on completing the forms and Page 8 Hamilton Growers, Incorporated Case ID: 1531943 providing a copy to each employee and to the Agency as proof of payment. Recommendations: H-2A - Recommend that CMPs be assessed as computed for the AGER. The relevant factors are the following: The AGER has been cited for violations under the H-2A program in 2001 and 2003 with noted violation and MSPA violations in 2005 investigation. In the previous H-2A and MSPA investigations the AGER was cited for housing and wage related violations. A review of all current job certifications/applications for this AGER should be at least considered for debarment. Any further correspondence should be sent to: Mr. Kent Hamilton Hamilton Growers, Inc. 2775 Ellenton-Norman Park Rd. Norman Park, GA 31771 7C WHI 01/26/2011 Page 9 Hamilton GrowersI Incorporated Case ID: 1531943 Hamilton Growers, Incorporated 2775 Ellenton-Norman Park Rd. Norman Park, GA 31771 (229)769-3676 EIN: 7C CID: 1531943 I. NARATIVE REPORT COVERAGE: FLSA: The subject of this investigation is an agricultlu?al employer (AGER-Hamilton Growers, Inc.) who employs workers in a farming operation. The business is incorporated in Georgia with a date of 12/29/1995. Mrs. Wanda Hamilton-Tyler is the registered agent. Hamilton Growers, Inc., uses Southern Valley Fruit and Vegetable Inc., as their broker to sell the different commodities nation wide. Hamilton Farms, Inc is owned and operated by Wanda Hamilton-Tyler and Kent Hamilton. Southem Valley Fruit and Vegetables Inc. is owned and operated by President Kent Hamilton who is also the registered agent. There are no other branch locations. The AGER produces squash, eggplant, cucumbers and a variety of peppers on approximately 800 acres. The various crops are harvested, graded, packed and shipped in interstate commerce. Mrs. Colene Flowers-the payroll clerk represented the company at the initial conference. The business was covered under Section under the FLSA and gross sales exceeded the minirmun coverage criteria for $500,000.00. See Exhibit -1 All the workers are covered on an individual basis rmder Section 2030) of the Fair Labor Standards Act. The workers handle, grade and pack the various crops grown on the AGER's farms for the shipment or anticipated shipment in interstate commerce nationwide. Hamilton Growers, Inc., uses Southern Valley Fruit and Vegetable Inc., as their broker to sell the different cormnodities nationwide. (See Exhibit -1). MSPA The subject of this investigation is an Agricultm?al employer (AGER) as de?ned in Section 3(2) of the Migrant and Seasonal Agricultru'al Worker Protection Act (MSPA). He recruits, transports, houses and employs migrant agricultural workers (MAW's) for the planting, cultivating, Page 10 Hamilton Growers, Incorporated Case ID: 1531943 harvesting, grading and packing of the various crops above. The vegetables are harvested, graded and packed for approximately 10 months out of the year. The AGER has their own farm land and packing house located at the above location. Hamilton Growers, Inc., uses Southern Valley Fruit and Vegetable Inc., as their broker to sell the different commodities nation wide. During the investigation period the AGER used the services of FLC (H-2ALC) Margarita Cardenas to harvest cucumbers at his farming location. The FLC was paid $22.00/bin for the work completed. See Exhibit B-1, B-2, B-3 & B-4 OSHF The FLC has in excess of 11 employees engaged in hand harvesting, grading and packing activities for periods in excess of 3 hours in any given day hand harvesting, grading and packing is done in the fields. See Exhibit B-1, B-2, B-3, B-4 Joint Employment: The workers are jointly employed by the AGER and the FLC Cardenas. The AGER prepares the payroll and pays the workers directly each week. The AGER instructs the FLC Cardenas daily when to report to work with her crew and what fields will be worked in. The AGER checks for the quality and the quantity of the cucumbers being harvested and packed. The FLC maintains the record of HW via field tally sheets which are turned into the AGERs office for record keeping and payroll processing by the AGERs payroll clerk Colene Flowers. The FLC receives $22.00 per bin of cucumbers harvested. The work performed by the FLC and his crew is an integral part of both the AGER business. All of which supports the joint employment relationship between the AGER, Pacific-Collier and the FLC. Joint Responsibility: Housing – The AGER and FLC Cardenas are jointly responsible and deemed in control of the housing. The housing is leased by the AGER since it is part of the farm land used by this AGER for growing vegetables. The housing provided to FLC Cardenas for her migrant workers is located at Joe Griffin Road, Norman Park, Georgia. The AGER did not charge the FLC for the housing as it was to be used by H-2A workers (out of status). The AGER provided this housing labor camp to FLC Cardenas workers to keep the crews separate while completing the cucumber harvesting and packing at the AGERs location. Page 11 Hamilton Growers, Incorporated Case ID: 1531943 Investigative Period The period of investigation has been limited to the current MSPA season, 01 June 09 to 29 June 09. Prior History: CID 1082149 H2A Investigation - Investigation was conducted by WHI 7C in 07/2001. There was noted violation for not paying workers subsistence allowance for transportation. 88 workers were due $5,705.04 in back wages. CMP was computed at $200.00. The CID for this case was 1154504, this case was entered into WHISARD for tracking purposes, and the violations were included in CID 1082149 which was Baker Farms. CID 1323834 H2A Investigation - This AGER was previously investigated in 11/2003 by WHI for one of the field supervisors not correctly recording actual hours 7C for a 7E worked. The allegation was unsubstantiated. There were noted violations for item 3, 8, and 11. CMP was computed at $500.00, but not assessed since it was less than the Regional threshold. CID 1401175 MSPA Investigation – This AGER was previously investigated in 04/2005 by WHI Williams/Delgado for a complaint received from the GADOL for alleged peonage, prostitution, improper housing, hours worked discrepancies, and the promised rate not being paid for all hours worked. There were noted violations for items 1, 2, 4, 5, 9, 12, 13, and 14. Item 9 back wages in the amount of $13,761.41. CMPs assessed at $4,125.00. A Consent Order was approved for this AGER on 12/13/2006 requiring the AGER to maintain compliance with MSPA. See Ex. D-5 Related Cases Margarita Cardenas – FLC II. CID 1514878 EXEMPTIONS FLSA: Section 13(a)(6)(A): Not applicable. The AGER was not entitled to the exemption. The man-day EX 4 count as computed; EX 4 workers x days/wk x EX 4 wks (2nd Qtr of proceeding year) = 36,600 man days (See Exhibit C-1). Page 12 Hamilton Growers, Incorporated Case ID: 1531943 Section 13(b)(12): Applicable. The AGER employs workers in the planting, harvesting, grading and packing of crops. The AGER only processes his own crops in his packing house. The AGER does not harvest or pack for any other AGERS (See Exhibit. C-1). MSPA Section 4(a)(1) Family Business Exemption – This exemption is not applicable for this AGER. Farm labor contracting activities are performed by individuals other than the AGER or his immediate family members, specifically, recruiting, soliciting, hiring, employing and transportation for the farming operation. Section 4(a)(2) Small Business – The exemption was found not applicable for this AGER. The AGER used in excess of 500 man-days during the 2nd Qtr of the preceding year. The man-day EX 4 count as computed; EX 4 workers x days/wk x EX 4 wks (2nd Qtr of proceeding year) = 36,660 man days (See Ex C-1). Section 4(a)(3)(D) – The exemption was found not applicable for this AGER. The AGERs farming operation expands over a 10 months period, exceeding the 13 weeks limitation. (See Ex C-1). Section 4(b) – The exemption is applicable for the AGER. Registration does not apply AGER or his employees. See Ex C-1 Section 203© - The exclusion from housing safety/health requirements, does not apply; this AGERs “ordinary course of business” is considered to be that of a farmer, not landlord. The housing is provided to migrant agricultural workers exclusively employed by the AGER and not to the general public. See Exhibits B1, B3, B4, B5 and B6. OSHF 29 CFR 1928.110(c)(2)(v): Not Applicable. The AGER employed as many as EX 4 workers in the fields and packing house during the investigation period. The AGER had in excess of 11 MAW's engaged in hand harvesting activities, for more than 3 hours a day. See Ex. B-1, B-2, and B-6 Page 13 Hamilton GrowersI Incorporated Case ID: 1531943 STATUS OF COMPLIANCE This compliance action was initiated by a 7E received from a 70 . The 7E disclosed that there were possible minimum wage and overtime Violations with this AGER. Statements obtained dru'ing the investigation could not substantiate the allegations. (See FLC STMT Exhibit For this investigation period, the AGER had a crurent job order that the FLC workers were performing work on. The workers provided by the to the AGER were out of status and therefore MSPA applied to the workers for the limited investigation period. The workers that H-2ALC Cardenas bought to harvest cucumbers at this AGERs location were out of status because the H-2ALC did not have the AGERs location listed on her certi?cation to perform work dlu?ing the certi?cation period on her current H-2A job certi?cation. Hamilton Growers, Inc., is owned and operated by Mrs. Wanda Hamilton-Tyler and Mr. Kent Hamilton. The AGER is primarily involved in the H2A program. The AGER had a certi?ed contract that began 03/28/2009 to 12/31/2009 (See Exhibit This investigation was limited to MSPA for the investigation period 06/01/09 to 06/29/09. The AGER uses the services of AG Works, Mr. Dan Bremer, to process and obtain his workers throughout his season and primarily for the H-2A program. The AGER currently listed as many as workers per week prior to the onset of this investigation. The workers were hired by the AGER. The AGER claims all of the workers in the ?elds and the packing house as employees. The AGER relies on the H-2A program to obtain workers to harvest and process his crops. The AGER hires all workers employed at his farming location. The AGER maintains all payroll and employee records at his location. The AGER has 4 Field Supervisors employed to provide instructions to the workers in the farming and packing house operation. The AGER instructs the ?eld supervisors on the quality of the crop to be harvested, ?eld location for harvesting and the packing house operations. The AGER provided potable drinking water, suitably cool and in suf?cient amounts, dispensed in single-use cups and carried from ?eld to ?eld by the ?eld supervisors, portalets and hand washing facilities where provided in ?elds where 11 or more workers were engaged in hand harvesting and located within a quarter-mile walk, or if not feasible, at the closest point of vehicular access. See Exhibit Page 14 Hamilton Growers, Incorporated Case ID: 1531943 B-1. The period of investigation has been limited to June 01, 2009 to June 29, 2009. The AGER pays both by the hour and on a piece rate basis which varies depending on the crop being harvested with a disclosed agreement for workers to receive at least $7.25 for all hours worked (See Ex. C-2 for list of piece rates) on the current H-2A job certification. The AGER pays the workers on a weekly basis, pay day is on Fridays. The work week is from Sunday to Saturday. There is a one week lag time for the processing of the payroll. The only written disclosure provided to the workers was that one provided when the workers arrive at the AGERs location for the H2A contract that expires December 31, 2009. The AGER has labor camps at the following locations; 125 Las Vegas Lane, and the facilities are divided among 3 major buildings, two residential/dormitory buildings and one cafeteria. The AGER provides 3 meals per day at a cost of $59.40 per week. The meal cost is deducted from the EE's pay; it is reflected in the check stub. The meal deduction was found to be reasonable, $2.75 per meal. The second housing location is called the Red House camp located on Ellenton-Omega Rd., also located in Norman Park. The third labor camp is on Joe Griffin Road and was allocated for use by FLC Cardenas. The real property where the Las Vegas and Reno camps are located is owned by the AGER. The real property for the Red House camp (Trailers also located on property) is owned by Wanda Hamilton-Tyler's brother and leased to the AGER for 7C the housing of the workers throughout the season. The Joe Griffin camp is also leased to the AGER along with the land usage. There is no charge to the workers for residing in the housing, but the AGER maintains all control/ownership of the housing. The Colquitt County Tax Commissioner's office (Moultrie, GA) verified the ownership of the real property where the business operation is located in Norman Park, GA listed above. See Exh. D-2a The water samples were up to date. The AGER has sufficient insurance to meet the requirements for the transportation of workers. The made reference to minors being in the fields 7E working. The investigation did not reveal nor could it prove the presence of minors employed at the farm (See Exhibit D-3). VIOLATIONS: Page 15 Hamilton Growers, Incorporated Case ID: 1531943 FLSA: Section 206 Minimum Wage: Section 207 Overtime: Section 211 Record Keeping: Section 212 Child Labor: None noted. None noted. None noted. None Noted MSPA: Item 12: Failure to ensure housing safety and health. MSPA Sec. 203(a) and (b): There were noted violations for safety standards in the housing. See WH-519b w/attached photographs for listed violation. The violations were from marginal to serious. The AGER corrected a significant amount of the housing violations during the 10 day abatement period provided. The housing provided to FLC Cardenas was abated also with the camp closing since the workers left during the 10 day period. It is recommended that the CMP be assessed as computed for repeat violations. There is no charge to the workers for residing in the housing, but the AGER maintains all control/ownership of the housing. The Colquitt County Tax Commissioner's office (Moultrie, GA) verified the ownership of the real property where the business operation is located in Norman Park, GA listed above. See Exhibits B-2, B-3, B-4 The following is a list of noted violations in the housing. See attached WH 519b and photographs. See Exhibits D-1 & D-2 Item 8 Grounds and open areas not maintained. 29 CFR 1910.142(a)(3) The area needed attention for garbage, trash removal, unused furniture sitting outside of building. Serious/Corrected. See Exhibit D2 photos 55, 56, 62, 100, 101. Item 12 Shelter do not provide protection against the elements. 29 CFR 1910.142(b) Showers in the rear of the building weren't covered for protection against the elements. Serious /Corrected. See Ex. D2 photos 59, 62, 79 Item 15 No wall lockers for clothes/personal Items. 29 CFR 1910.142(b)(3) There was clothing on the floors, and anywhere that workers could place their property, Page 16 Hamilton Growers, Incorporated Case ID: 1531943 not enough storage was provided for workers to store there property. Serious/Corrected. See Ex. D2 photos 3, 4, 5, 6, 7, 8, 40, 41, 42, 49 Item 17 Beds, cots/or bunks less than 3' apart, and/or less than 12” from the floor. 29 CFR 1910.142(b)(3) Beds were pushed together, not properly spaced. Serious/Corrected. See Ex D2 photos 4, 7, 8, 82, 89, 102, 103 Item 26 Broken Windows 29 CFR 1910.142(b)(1) Broken windows were found in several of the housing units. Broken Windows were replaced by AGER. Marginal/corrected See Exhibit D2 photos 2, 5 Item 28 Door not equipped with self-closing devices 29 CFR 1910.142(b)(8) The door was propped open at the labor camp with no closing device to alleviate insects from entering the building. Serious/Abated See Ex. D2 photo 46 Item 54 Toilets in an unsanitary condition. 29 CFR 1910.142(b)(3) Toilets not cleaned feces in the toilet, excessive used toilet tissue on the floors and trash bags. Serious/corrected. See Ex. D2 photos 11, 21, 24, 25, 26, 27, and 38. Item 55 Toilet rooms not clean daily. 29 CFR 1910.142(d)(10) The bathrooms hadn't been cleaned, excessive tissue paper left out on floor, sinks clogged and dirty, toilets not cleaned. Serious/abated. See Ex. D2 photos 11, 21, 24, 25, 26, 27, 38, 45, 68, 69, 78, 81 and 86. Item 64 Waterproof, smooth, non-slip floors not provided in laundry and bathing facilities 29 CFR 1910.142(f)(2). The showers not treated with a non slip material, or had very worn flooring, or plan wood flooring in the shower. Serious/abated See Ex. D2 photos 79, 96, 97, 98 Item 65 No floor drains or adequate drainage 29 CFR 1910.142 (f)(2) The showers were clogged with debris and not cleaned for adequate drainage. Serious/Abated See Ex. D2 photos 17, 22, 23, 58, 59, 60, 61, 62, 84, 85. Page 17 Hamilton Growers, Incorporated Case ID: 1531943 Item 66 Walls and partitions not of waterproof material up to splash line. 29 CFR 1910.142(f)(2) The walls were very poor condition with excessive mildew/mold. Serious/abated See Ex. D2 photos 17, 58, 59, 60, 61, 62, 80, 84, 85 Item 76 Lighting of an adequate level not provided in each room. 29 CFR 1910.142(g) Light fixtures not properly secured to the wall or ceiling, broken bulbs or missing bulbs. Marginal See Exhibit D2 photo 1, 36 Item 77 No refuse containers provided. 29 CFR 1910.142(h)(1) AGER did not have enough trash containers in the camp rooms. Serious/abated corrected. See Ex. D2 photos 11, 21, 24, 25, 26, 27 Item 78 Failed to have at least one container for each family unit 29 CFR 1910.142(h)(1) There were not sufficient trash cans in the labor camp trash was in bags or just swept up in piles on the floor. Serious/Abated See Exh D2 photos 11, 21, 24, 27, 38, 45 Item 84 Food not free from vermin, rodents, flies, ect.. 29 CFR 1910.142 (i) Rat feces visible, and food left out in area where cooking done, abundance of flies in the area. Serious/Abated See Exh. D2 photos 13, 22, 45, 52, 53, 72 Item 93 Infestation by and harborage of insects and/or pests. 29 CFR 1910.142 (j) Excessive flies in the area because cooked food was left out. Rat feces visible Serious/Abated See Exh. D2 photos 13, 22, 45, 52, 53, 72 Total Computed CMP: $6,000.00 It is being noted in the narrative that during the investigation a worker had been injured. The worker had been working in the fields and after emptying his bucket the moving trailer struck him in the shoulder. The worker was taken to the hospital, treated and released. There was no fatality at the farming location. See Exhibit B-3 Page 18 Hamilton GrowersI Incorporated Case ID: 1531943 IV. DISPOSITION: On 01/26/2010, a JRC teleconference was held with the National Of?ce Farm Team, SE RSOL, SE RO Dir of AG Enforcement, WHI 70 ADD Sneed and WHI 7C The ?le was discussed for both H-2A and MSPA violations and how to proceed with completing the investigation. It was determined that for MSPA the AGER was solely responsible for the housing violations noted dining the investigation. The AGER owned and controlled the housing and the workers staying in the housing were out of status H-2A workers that were bought to his location to pick his crop. The violation was to be cited rmder MSPA for this reason and not H-2A. WHI was informed that since the AGER had a consent judgment to comply with MSPA (See Exh. D-5) the violation was considered to be aggravated for civil money computations. The H-2A violations were discussed for both 1987 Rule and 2008 Rule for this AGER. It was determined that the following would be cited for the guarantee for 1987 Rule, 2008 Rule had violations for item 17 for transporting workers with improperly licensed drivers IAW GA State requirements, and Item 39 Employment related laws for not complying with the consent judgment for MSPA. On 07/08/2010, WHI 70 had a teleconference with Dir. of AG Enf C. Mills concerning this ?le and was informed that since the AGERs H-2A contract had been completed for 2009 and the investigation was started in the beginning of that job order a review was needed for guarantee for compliance. WHI obtained the payroll from the AGER and the guarantee review disclosed compliance for the 2009 completed job order for the AGER for the job contract. On 08/26/2010, a ?nal conference was conducted at the AGER's farm located at 2775 Ellenton-Norman Park Rd., Norman Park, GA 31771. In attendance at the ?nal conference were Kent Hamilton, Wanda Hamilton-Tyler and Mrs. Colene Flowers. WHI 7C represented the Wage and Horn Division. The conference began with a discussion of the H-2A violations. The AGER (Kent Hamilton) was informed that the business was being cited for H-2A violations for Item 6 Failure to pay 3A guarantee under the 1987 Rule, Item 17 Transportation failed to meet and Item 40 Failure to comply with employment related laws (MSPA). The guarantee violation was for the 2008 completed job order and the AGER was informed that after a review of the payroll 14 workers had not been paid/guaranteed wages on the job order. Mr. Hamilton and Mrs. Flowers stated they felt that it would be some of the workers that had not met the guarantee because the farming business had not had a good year. Mr. Hamilton stated that Page 19 Hamilton Growers, Incorporated Case ID: 1531943 any wages due to any worker would be paid to them for compliance. It was explained to Mr. Hamilton that the drivers (Item 17 under 2008 Rule) for the buses had to be properly licensed and meet the federal (FMCSR Sec 391-41/WHD) and state standards for operating and transporting workers. The AGERs agent had informed him and therefore he followed the guidance that as long as the drivers were operating farm equipment a Class C driver license was all that was required. WHI informed the AGER that all drivers transporting workers in the buses he used had to have a Class A CDL license were properly licensed. Mr. Hamilton and Mrs. Flowers stated that it was understood and that they will ensure that the drivers were properly licensed for the upcoming season. Mr. Hamilton was informed that it was being noted that Item 27 was reviewed but not cited for the wage rate discrepancy for the packing of the eggplant. It was not cited since the wage payments for the employees were all under $20.00 and de minimis under the law per JRC guidance. The workers were paid the amounts due for the discrepancy. The workers were paid $7.25 and the disclosed rate was $8.51 for packing eggplant. The conference continued with the discussion of the housing violations and the condition of the housing when inspected during the investigation. Mr. Hamilton was informed that MSPA standards applied to the housing for this investigation. MSPA applied because the H-2ALC did not have the AGERs location on her current job order and had moved the workers to his location to perform work. This action by the H-2ALC caused the workers to be “out of status” while performing work at his location. This meant that MSPA standards applied to the workers while residing in his housing and working at the aAGERs location. Mr. Hamilton stated that he left the responsibility of ensuring the housing was clean and up to standard to H-2ALC Cardenas. As busy as his summer growing season was it was hard to constantly monitor the housing. WHI explained to Mr. Hamilton that as the AGER it was his responsibility to ensure the housing was up to standard. Mr. Hamilton was informed by WHI that under the consent judgment for MSPA dtd 12/13/2006 he assured compliance. The condition of the housing was in no way compliant for the investigation. Mr. Hamilton stated he vaguely remembered the consent order and would research his files to review it. To remedy and correct the housing problems the housing used by H-2ALC Cardenas had been closed and not used when the workers left on 07/17/2009. The WH-517 Page 20 Hamilton Growers, Incorporated Case ID: 1531943 Potential MSPA Violations checklist was reviewed with the AGER to ensure he knew which items (1-18) that he was responsible for compliance under MSPA. Mr. Hamilton signed the WH-517 and was provided a copy of the form. After a firm agreement for future compliance, Mr. Hamilton was presented with the back wage liability for the ¾ guarantee wages due to the 14 employees. Mr. Hamilton stated that the wages would be paid to the workers. The WH-56 was signed and a copy was provided to him. A copy has also been placed in the file. The AGER was provided with WH-58s for proof of payment. The AGER and Mrs. Colene Flowers were provided with instructions on completing the forms and providing a copy to each employee and to the Agency as proof of payment. In closing the conference, WHI informed Kent Hamilton, his mother Wanda Hamilton-Tyler, and Colene Flowers that it was a possibility that civil money penalties could be assessed and that he would be further contacted by Agency management concerning any civil money penalty assessment. Recommendations: MSPA - Recommend that CMP's be assessed as computed for the housing violations noted for this AGER since he failed to comply with the consent order to maintain compliance with the Act. H-2A - Recommend that CMPs be assessed as computed for the AGER. The relevant factors are the following: The AGER has been cited for violations under the H-2A program in 2001 and 2003 with noted violation and MSPA violations in 2005 investigation. In the previous H-2A and MSPA investigations the AGER was cited for housing and wage related violations. A review of all current job certifications/applications for this AGER should be at least considered for debarment. Any further correspondence should be sent to: Mr. Kent Hamilton Hamilton Growers, Inc. 2775 Ellenton-Norman Park Rd. Norman Park, GA 31771 Page 21 Hamilton Growers. Incorporated Case ID: 1531943 7C WHI 01/26/2011 Page 22