Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 FLSA and FMLA NARRATIVE Local Filing 2012-253-00716 I 6 7- 05 3 0 (or Hamilton GrowersI Kent Hamilton d/b/a Hamilton Farms Establishment Address: Hamilton Growers Inc. 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 Mailing Address: 2775 Ellenton-Norman Park Rd Norman Park Ga.3 1771 i 2 Tele hone: Of?ce This investigative action is comgrised of concurrent investigations under the FLSA and MSPA statutes. Please see the resgective narrative reports [or sgecitzc ?ndings under each 01 the two statutes. See Associated Case ID(or See Associated Case ID: [67-0530 Case ID #167-0722 for Henderson armsI Inc. FLSA- The sub'ect ?rm of this investi ation is an a 'cultural em 10 er AGER-Hamilton Growers Inc) who employs workers in a farming operation. The business was incomorated in Ga.in 1995. The ?rm is a family business and the registered agent for the business is Wanda Hamilton. Page 1 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Hamilton Growers uses Southern valley Fruit and vegetable Inc as their broker to sell the different commodities nationwide and is run by four family members: Kent Hamilton and spouse are the President and Vice President. Agricultural Employer Kent Hamilton is 100% sole proprietor of the subject ?rm; the subject farm is located in Norman Park Ga and the business also has farms in Florida and Yucatan Mexico which encompasses approximately 1210. The AGER produces sguashI eggplanta cucumbers and a varieg of peppers on approximately 800 acres. The various crops are harvested: gradeda packed and shipped in interstate commerce. Mrs. Colleen Flowers and John Sprawls represented the company at the IC. Also in attendance for WH were FLSA and FMLA NARRATIVE Local Filing 2012-253-00716 1 6 7 -05 3 0 for Hamilton GrowersI Kent Hamilton d/b/a Hamilton Farms Establishment Address: Hamilton Growers Inc. 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 Mailin Address: 2775 Ellenton-Norman Park Rd Norman Park Ga.3 1771 EIN: Tele hone: Of?ce: Ll Page 2 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Cell #1: 229 The employers attorney Larry Stein, not present at the IC stipulated by telephone the business was covered under Sec.3(s) (1) (A) under the FLSA and gross sales exceeded the minimum coverage criteria of $500,000.00.(See Ex B-C-1,2abcd&3). The annual dollar revenue (ADV) of the subject firm for the three preceding calendar years is as follows: 2009 2010 2011 EX. 4 (estimated by the employer) (estimated by the employer) See Exhibit C 1. The 2011 figure was provided by AGER Hamilton during an IC in the main office in Ga The 2010 and 2009 estimates were the only figures provided by the subject firm. Enterprise coverage applies as the firm had an ADV greater than $500,000 and had at least two employees handling goods which had moved in interstate commerce. Individual Coverage applies to all the workers who were involved in the cultivation, growing, harvesting, and packaging of the AGER's crops according to sec 3(j) 0f the FLSA. AGER Hamilton buys 100% of the stock grown by AGER Donnie Henderson. Hamilton Farm, d/b/a Southern Valley, in Norman Park, Georgia. FLSA and FMLA NARRATIVE Local Filing #: 2012-253-00716 C167-0530 for Hamilton Growers, Kent Hamilton d/b/a Hamilton Farms Establishment Address: Page 3 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Hamilton Growers Inc. 2775 Ellenton-Norman Park Rd Norman Park Ga.3 1771 Mailing Address: 2775 Ellenton-Norman Park Rd Norman Park Ga.3 1771 i Tele hone: Of?ce: The crops are harvested by migrant workers at Henderson Farm in Evensvillea TN and taken to the AGER's packing house where they are boxed and then shipped to Norman Park: Georgia. FMLA The subject ?rm was found to have at least 50 employees for 20 work weeks in the current or preceding calendar year. As suchi the ?rm is a covered employer under the FMLA. Howeveri due to the migant nature of the work forcei it is unknown whether any employees would meet the eligibilim requirements. Section 131a} (A) 500 Man Day Exemption: Not ?plicable. The AGER used well over 50 migrant workers during the busiest calendar quarter {3?1 Merl of the previous calendar year. A conservative calculation for Man Days is as follows: 50 migrant workers 5 days a week 8 weeks 2,000 Man Days. As suchI the AGER used well over 500 Man Days. Page 4 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Section 13(b) (12) Agricultural Exemption: Not Applicable. This exemption was claimed and found not applicable to the employees of the subject firm and employees of the farm labor contractors. These employees are engaged in agricultural activities and packing stock grown by another farmer for an agricultural purpose as defined by the FLSA (specifically, vegetable farming). FLSA and FMLA NARRATIVE Local Filing #: 2012-253-00716 C167-0530 for Hamilton Growers, Kent Hamilton d/b/a Hamilton Farms Establishment Address: Hamilton Growers Inc. 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 Mailing Address: 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 FEIN: EX 4 Telephone: Office: 7C AGER Hamilton buys 100% of the stock grown by AGER Donnie Henderson. Hamilton Farm uses Southern Valley, in Norman Park, Georgia as their broker to sell the different commodities. The crops are harvested by migrant workers at Henderson Farm in Evensville, TN and taken to the AGER's (Henderson) packing house where they are boxed and then shipped to Norman Park, Georgia. See Exhibits B 1 through B-12, and C1-4. As such, the agricultural workers are not exempt from the Page 5 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 overtime provisions of the statute. Investigative period: May 4I 2012 through November 25I 2012. Extensive histog exists for the subject ?rm. MODO is required. Limitations: None. This was a full investigation. Case assignment: This case is a directed investigation set up as part of the Nashville District Of?ce FY 2013 A 'culture Initiative. Investi ators participated in this investigation. This case was assigned after investigators -observed ?agrant MSPA transportation safe? violations while conducting an investigation of an adjacent farm. FLSA and FMLA NARRATIVE Local Filing 2012-253-00716 C1 6 7-05 30 for Hamilton GrowersI Kent Hamilton d/b/a Hamilton Farms Establishment Address: Hamilton Growers Inc. 2775 Ellenton?Norman Park Rd Norman Park Ga.3 1771 Mailing Address: Page 6 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 FEIN: EX 4 Telephone: Office: 7C Joint Employment/Joint Responsibility A joint employment relationship was found to have existed with Hamilton Farms/dba Southern Valley and with AGER Donnie Henderson Farms in Evensville TN. However at start of the investigation it was initially difficult to get interviews from worker at the shed, as employees fled after the arrival of WHI it was not possible to obtain interview statements 7C to factually substantiate this likely scenario at the time. A joint employment relationship is also highly probably with Hamilton Growers., Inc d/b/a Southern Valley and Henderson farms. A detailed analysis of the facts surrounding the relationship between the subject firm and Hamilton Growers, Inc. is contained in the MSPA narrative of this case file. The facts also demonstrate that AGE Hamilton and Henderson were not completely disassociated with respect to the employment of the agricultural workers. In addition, the agricultural workers were found to be economically dependent on both persons. AGER Henderson s owns the packing shed and controlled access where employees were unloading and packaging tomatoes. All boxes and equipment were furnished by AGER Henderson. AGER Henderson appraised the work to ensure it was up to his standards. AGER Henderson and Hamilton benefited economically from the work performed by the individuals hired by Hamilton. See Exhibits B 1, B 2, B 3, B 4, B 5, B 7, B 11, B 12, B 13, and C 1. FLSA and FMLA NARRATIVE Local Filing #: 2012-253-00716 Page 7 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 C167-0530 for Hamilton Growers, Kent Hamilton d/b/a Hamilton Farms Establishment Address: Hamilton Growers Inc. 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 Mailing Address: 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 FEIN: EX 4 Telephone: Office: EX. 7C FLSA VIOLATIONS: Section 6: Minimum Wage: Section 7: Overtime: Overtime violations were uncovered and disclosed as the agricultural workers were not exempt from the overtime provision of the statute. These employees were found to have lost the agricultural exemption when Hamilton sent the workers to Henderson Farms and packed AGER Henderson's products in his packing house. Hamilton provided seventeen female workers from his farm in Ga. To pack produce at Henderson farms which was then sent to Ga and purchased after it was sold. These workers were paid at straight time for all hours worked while here in TN and were also determined to be H-@A workers out of status.(Ex.A-1 thru A-18,B-1 thru B-12&DD-1 to DD-18). Page 8 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Section 11: Recordkeeping: The investigation revealed that AGER Hamilton did make and preserve the required records for the duration of time as prescribed by the Act. required per 29 CFR Regulations Part 516.2 (a 1. AGER Hamilton maintained the weekly tally of piece rate production provided to him by the workers. AGER Hamilton also preserved the duplicate checks of pa?pent. FLSA and FMLA NARRATIVE Local Filing 2012-253-00716 I 6 7 -05 3 0 for Hamilton Growers. Kent Hamilton d/b/a Hamilton Farms Establishment Address: Hamilton Growers Inc. 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 Mailing Address: 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 FEIN EX4 Tele hone: Of?ce; Cell#l: Section 12: Child Labor: No child labor violations were disclosed. Page 9 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 FMLA VIOLATIONS: No Violations noted. A ?nal conference was held on December 4.th2012 via telephone. Representing the employer was AGER Kent HamiltonI John Sprawlesi their attorney Lm Stein and Dan Bremmer President of Agworks. A copy of the Handy Reference Guide to the FLSA was presented to AGER Hamilton at an IC held in November at the main of?ce. Representing the Department of LaborI Wage and Hour Division were WHIs . WHI be an the ?nal conference outlining coverage under the FLSA and explained that all the employees were individually covered as they were agp' cultural workers harvesting and packing a crop which was destined for interstate commerce. WHI- further outlined how entegprise coverage applied to the subject ?rm. AGER Hamilton did not dispute that individual and enterprise coverage was applicable. WHI - outlined Sections 3 and 16 of the Act. AGER Hamilton did not contest his desi ation as 3 em 10 er. AGER Hamilton acknowled ed that he understood the im lications of both sections of the Act. FLSA and FMLA NARRATIVE Local Filing 2012-253-00716 1 6 7-05 30 for Hamilton GrowersI Kent Hamilton d/b/a Hamilton Farms Establishment Address: Hamilton Growers Inc. 2775 Ellenton-Norman Park Rd Page 10 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Norman Park Ga.31771 Mailing Address: 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 FEIN: EX 4 Telephone: Office 7C There were no disclosed violations of child labor. The farmers Attorney Larry Stein requested an explanation as to why there were overtime FLSA violations. WHI 7C then explained that the 'out of status” workers essentially packed for another grower (Henderson). The agricultural exemption contained in section 13(b) (12) was inapplicable because they packed for another grower and the produce was sent to Georgia to be sold. WHI EX. 7C discussed how that exemption could be lost. I informed them that the DOL position is that, during the entire time these workers engaged in the 'out of status' activity they should have been paid overtime for hours over forty.WHI 7C gave some further examples of how the overtime exemption would be lost. i.e. if an AGER required workers to work at another farm and co-mingle goods with his own or if goods from other farms were arriving in the packing house and workers were handling co-mingled goods. Initially AGER Hamilton, through his attorney Larry Stein did not agree and requested to be able to review the regulations on the issues. The attorney requested that I send to him the computations for review, I scanned the copies to review along with the WH-56 on Friday Dec.7, 2012 On December 14th attorney Stein informed me that the AGER would agree to payment of the FLSA back wages. He stated that he would get with the AGER and have him sign the WH-56 by December Page 11 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 30, 2012. WHI 7C then outlined coverage under the MSPA which is discussed in the MSPA Narrative. There were no disclosed violations of child labor. FLSA and FMLA NARRATIVE Local Filing #: 2012-253-00716 C167-0530 for Hamilton Growers, Kent Hamilton d/b/a Hamilton Farms Establishment Address: Hamilton Growers Inc. 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 Mailing Address: 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 FEIN: EX 4 Telephone: Office: 7C Future correspondence should be addressed to: Mr. Kent Hamilton 2775 Ellenton-Norman Park Rd. Norman Park Georgia 31771 Page 12 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Recommendation: This was not the subject firm's first investigation. There is extensive history of prior non-compliance. As such, the FLSA violations are repeat. AGER Hamilton has not agreed to pay as of this writing but has agreed to comply. It is recommended that FLSA CMPs be assessed. Submitted by: 7C WHI Dec.10 2012 Publications Provided: HRG to the FLSA, Fact Sheets 35, 44, 49, 69 , Regulations 516, 780, 785, 791, The FLSA, FLSA Poster, MSPA Poster, Wage Statement , OSHA housing checklist, OSHA housing regulations, MSPA 500, MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Page 13 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 FEIN: EX4 Telephone: Of?ce: 7C This investi ative action is com rised 0 concurrent investi ations under the FLSA and MSPA statutes. Please see the respective narrative reports (or ?ndings under each of the two statutes. 1 6 7-0 722 [or Henderson (arms, Inc. COVERAGE: The subject ?rm of this investigation is an agricultural employer {AGER?Hamilton Growers Inc) who employs workers in a fanning operation. The business was incorporated in Gain 1995. The ?rm is a family business and the registered agent for the business is Wanda Hamilton. Hamilton Growers uses Southern valley Fruit and vegetable Inc as their broker to sell the different commodities nationwide and is run by four family members: Kent Hamilton and spouse are the President and Vice President. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT NARRATIVE Local Filing 2012-253-00716 Page 14 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.3 1771 Mailing Address: Hamilton Growers 2775 Ellenton?Norman Park Ga.31771 m- Tele hone: i Agp' cultural Employer (AGER) Kent Hamilton is 100% sole proprietor of the subject ?rm; the subject farm is located in Norman Park Ga and the business also has farms in Florida and Yucatan Mexico which encompasses approximately 1210. The AGER produces sguash, eggplant, cucumbers and a varieg of peppers on approximately 800 acres. The various crops are harvested, gradeda packed and shipped in interstate commerce. Mrs. Colleen Flowers and John Sprawls represented the company at the IC. Also in attendance for WH were and this WHI. The employer's attorney Lm Steina not present. The ?rm operates under several H-2a contracts and because 18 of these workers were sent to the Henderson farm ?out of status? became migrant agricultural workers who worked in the packing house of Henderson farms packing the various crops grown by AGER Henderson. mm Page 15 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 29 CFR 500.30(a): Family Business Exemption. Not Applicable. AGER Hamilton H-2a Agency Agworks to perform FLC activities. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: 7C 29 CFR 500.30(b): Small Business Exemption: Not Applicable. Not Applicable. The AGER used well over 50 migrant workers during the busiest calendar quarter (3rd Quarter) of the previous calendar year. A conservative calculation for Man Days is as Page 16 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 follows: 50 migrant workers 5 days a week 8 weeks 2,000 Man Days. As such: the AGER used well over 500 Man Days. STATUS OF COMPLIANCE Investi ative eriod: Ma 5th 2012 throu Se tember 29 2012. Histou/MODO: Extensive histog exists for the subject ?rm. The subject denies operating in other locations in TN other than Evensvillea TN. MODO is reguired. Limitations: This was a limited investigation of the operation in TN. Case assignment: This case is a directed investigation setup as part of the Nashville District Of?ce FY 2013 Ag?iculture Initiative. Investigators 7C participated in this investigation. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing 2012-253-00716 Case ID #167?0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers Page 17 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone 7C This case was assigned after investigators observed flagrant MSPA 7C transportation safety violations while conducting an investigation of an adjacent farm. Upon arrival to the Henderson farm investigators observed eleven packing shed workers run and leave the area who were later identified as being H-2a workers from Hamilton Growers in Ga. Joint Employment/Joint Responsibility . However, as employees fled after the arrival of WHI 7C it was not possible to obtain interview statements to factually substantiate this likely scenario. A joint employment relationship is also highly probably with Hamilton Growers., Inc d/b/a Southern Valley. A detailed analysis of the facts surrounding the relationship between the subject firm and Hamilton Growers, Inc. is outlined in the “Method of Operations” section of this narrative report below. Method of Operations: AGER Henderson and his family own and operate Henderson farms in Evensville Tenn. The Henderson's oversee all operations of the family farm. The AGER uses several FLCs to furnish, recruit, employ, solicit, hire, and transport migrant agricultural workers (MAWs) to work his crop. The season typically begins around April and ends at the first frost, usually around mid to late October. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Page 18 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: 7C Henderson's FLC's work on different crops and may even employ lower tier FLCs. Each lower tiered FLC is usually an operator or owner of a box truck in which the AGER's produce are field packed and then transported from the field to the packing house. The various commodities are further washed, sorted, packaged, and stored as needed at the AGER's packing house. One hundred percent of the crop produced by AGER Henderson is then sold and afterwards purchased by Hamilton Growers, Inc of Norman Park, Georgia. AGER Henderson's relationship with Hamilton Growers, Inc. d/b/a Southern Valley was suspect because the AGER was not forth coming about the relationship with Hamilton Growers. Page 19 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 And this investigation was launched after WHI witnessed several 7C box trucks transporting peppers and MAWs from AGER Henderson's field to his packing house. All of the trucks were under the direction of FLC Emma Sanchez. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: 7C : Upon stopping the safety infraction, interview statements were obtained which verified that Page 20 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 these workers routinely were transported from AGER Henderson's fields to the packing house in the back of the box trucks while they were packaging peppers. In order to reach the packing house, the box trucks traversed public roads (specifically: Liberty Hill Rd, Dunn Rd, and Nelson-Harrison Rd). WHI EX. 7C followed one of the trucks all the way to the packing house. Upon relaying his location, WHI EX. 7C joined WHI EX. 7C at the packing house. Upon arrival, WHIEX. 7C noticed the workforce hurriedly leaving the packing house, several were running. In their haste, WHI EX. 7C noticed that the MAWs ceased what they were doing and dropped the produce they were washing and packing on the floor or left it in the washing solution. Within minutes, the packing shed was completely vacant of all MAWs. As discussed in CF# 167kkkk an initial conference was held with the Henderson's on September 26, 2012 at the packing house/office. WHI 7C represented the Division and Mrs. Stephanie Henderson represented the employer. A subsequent initial conference was held on September 27, 2012 with WHI representing the Division. They again met with 7C Mrs. Stephanie Henderson. During the first initial conference, WHI 7C was informed that there were H-2A workers present that had been sent to him by Hamilton Growers Inc in Norman Park Georgia. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers Page 21 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 EX 4 Telephone: EX. 7C FEIN Upon further questioning, it was discovered that Hamilton Growers, Inc. had transported H-2A workers from their facility in Norman Park, Georgia to work at the packing house at AGER Henderson's farm. (See Ex B-1,2,3,4 5, 6,7, 8, 9, 10,11,12). As these H-2A workers were technically out of status, they were considered to be MAWs while they were working at AGER's Henderson's farm. One H-2A worker stated that AGER Donnie P. Henderson had brought him from Georgia to Tennessee in his brown, double cabin pickup truck.(See ex.B-4). AGER Henderson denied this claim outright to WHI 7C AGER Henderson provided few details and claimed he was largely unaware of specifics. AGER Henderson stated he only had a verbal contract with Hamilton Growers, Inc. and that no written contract had ever been signed. AGER Henderson insisted that the two companies only had a gentlemen's agreement. AGER Henderson stated that Hamilton Growers, Inc. and the commodity market set the prices for his crop and that he was not able to negotiate a price. AGER Henderson claimed that all the MAWs working in the packing house were under the direction of Hamilton Growers, Inc. and that he had no direct role in their supervision, pay, or transportation. AGER Henderson also stated that he was the sole proprietor of the subject firm, despite the earlier statement by his wife Stephanie that Donald Henderson, Vanessa Henderson, Donnie P. Henderson, Page 22 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 and she were all 25% owners of the subject firm. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: 7C AGER Henderson denied that he had any role in the timing of bringing the workers from Norman Park, Georgia to his packing shed and stated that Hamilton Growers, Inc. knew when to bring them of their own intuition. During the initial conference held at Henderson farms WHI EX. 7C had been informed by the Henderson's that the H-2A workers were being housed at the Scottish Inn in Dayton, TN. WHI then went to the motel to conduct interviews. 7C Page 23 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 A handful of workers were at the motel and informed the WHIs that the majority of the workers had gone to Wal-Mart. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN EX 4 Telephone: Office: Page 24 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Cell #1: WHI went to Wal-Mart and conducted interviews of the workers upon 7C finding the shuttle bus bearing the logo of Hamilton Growers, Inc. d/b/a Southern Valley. The workers became frightened after being told by some men to cease discussion and leave now. Interviews state that after the arrival of WHI the workers were told by Hamilton Growers, 7C Inc. that they were going to promptly leave and return to Georgia. Interviews identify 7C son of the manager of Hamilton Growers, Inc., as the onsite supervisor for Hamilton Growers while at Henderson Farms. Interviews of these workers also state that AGER Henderson acted in a supervisory role as well. (See Exhibits B 1 thru B-11). The hotel owner of Scottish Inn in Dayton, TN, the location where at least 11 H-2A workers were being housed, stated to WHI EX. 7C that Mrs. Stephanie Henderson had made the reservation for the workers there and that she was paying for their stay on her credit card.(see Ex.D-1). AGER Henderson asserts that Henderson Farms had no direct role in any way with the workers who were brought up from Norman Park, Georgia. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Page 25 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: Office: Cell #1: During the Henderson Farms initial conference, however, Mrs. Henderson provided a sample wage computation that shows she was tracking hours worked and determining their pay. On this document, the pay rate per hour is $9.39 which is the same amount as the Adverse Effect Wage Rate (AEWR) on the H-2A contract. The AEWR is the rate of pay required for the H-2A workers working for Hamilton Growers, Inc. Information from the State of Tennessee Comptroller of the Treasury office, Real Estate Assessment Data, includes Southern Valley on the data for the address at 591 Dunn Cemetery Rd, Evensville, TN 37332. (See Exhibit C-6a,b,c). The investigation also found that management staff from Hamilton Growers, Inc. was residing in Winnebago-style mobile homes parked at Henderson Farm adjacent to the packing house. AGER Hamilton questioned how coverage under the MSPA was applicable since these were H-2a workers. WHI Dumasane informed AGER Hamilton that the investigation revealed that although the workers Page 26 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 came to his farm as H-2a workers they were only certified to be working in Georgia. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: Office: Cell #1: I also explained to the AGER that-(because he did not did not file an application to have workers in TN) by them being brought to Tennessee to work took them out of H-2a status and basically made them 'out of status” and subject to MSPA. MSPA VIOLATIONS Page 27 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 MSPA - 01 Fail to disclose conditions to workers Violations were substantiated. AGER Hamilton failed to provide written disclosure to migrant workers in accordance with the Act's mandate. No migrant worker received written disclosure that they would be working in TN. (See Exhibits B 1through B 11). Not Aggravated, Willful, or Recurring. Civil Money Penalties of $50 were computed in Whisard. MSPA - 02 Fail to post MSPA poster at worksite No violations noted. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers Page 28 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: Office: Cell #1: MSPA - 04 Breach of working arrangements with workers Violations were charged because the AGER Hamilton brought H-2a workers to perform work in Georgia and did not have authorization to work them in TN. MSPA - 06 Fail to provide wage statement to workers No Violations MSPA - 07 Fail to provide records No violation noted. MSPA – 08 Fail to maintain records provided by FLC Not applicable no Violations were noted. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Page 29 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Local Filing 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Parl_< Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Nonnan Park Ga.31771 FEIN: EX4 Telephone: Of?ce: Cell #1 MSPA - 09 Fail to pay wages when due The investigation revealed that AGER Hamilton had failed to pav employees the applicable minimum wage for all hours worked under MSPA. As such, the migrant workers did not receive their just wages when due. This violation occurred workers had to buy their own meals one day a week (Sundav) in violation of the AGER obligation to provide meals Imder his H-za contract obligation. Since imder MSPA the out of pocket expense is a disclosed MSPA rate violation. The number of days this Violation covered was obtained from EE interviews! see Ex B-l to B-ll&DD-l thru The average meal charge is $11.00 a day. Slmday of each week was used to compute the back wages due and was based off of employee interviews. $11.00 21weeks=242.00. A period of 8 Page 30 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 -21weeks was used as the time frame. Example Computation: ($11.00) 8-21 weeks = $88.00 $242.00 A total 18workers were found due a total of $2000 in MSPA minimum wage back wages. . See Associated Case File #167-0722, Henderson Farm. (see Ex.A-1 thru A-18&DD-1 thru DD-18) MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: 229 769-3676 Page 31 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 MSPA - 10 Restrict Workers in purchase of goods and services No violations noted. MSPA - 11 Fail to post housing conditions No Violations were substantiated. The out of status workers were being housed at the Scottish Inn in Dayton and were subject the Inn Keeper exemption. MSPA - 12 Fail to ensure housing safety and health No violations noted. The Scottish Inn was adequate and satisfied OSHA regulations. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Page 32 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: 229 769-3676 : MSPA - 13 Fail to provide safe transport vehicles No Violations were noted. No. Civil Money Penalties were computed in Whisard. MSPA - 14 Fail to ensure driver has valid license No violations noted. MSPA - 15 Fail to obtain prescribed insurance coverage No Civil Money Penalties were computed in Whisard. MSPA - 16 Utilizes services of unregistered FLC Page 33 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 No Violations were noted. No Civil Money Penalties were computed in Whisard. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: 229 769-3676 : MSPA - 17 Discriminate against workers testifying, etc. There were eleven workers from Hamilton Growers in the group encountered at Henderson farms in Dayton and who were working 'out of status 'under H-2a and MSPA. These were the workers from Georgia who were pulled out of the packing shed at Henderson farms. As discussed they returned to Georgia under orders of Hamilton Growers. Page 34 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 The workers also stated that they were very afraid of the way Fermin Palomares spoke to them and felt to be in some danger there. They said that although Palomares did not personally say anything else to them-he and the managers have created an atmosphere of isolation because now the roommates are saying threatening things. Most of the information about the situation came from a couple of workers that served as spokes persons for the group. The workers requested that I come to the farm.(see Ex B-5&B-12). After discussion with DD Sanders and ADD Benjamin, WHI's 7C and I arrived at the farm. WHI's 7C interviewed the other members of the group from TN and confirmed the threatening statements made by Palomares and the atmosphere described by the EEs who served as spokes persons. (See Ex.B-1,2,3,4,5) MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Page 35 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 FEIN: EX 4 Telephone: 229 769-3676 Prior to me arranging to go to Georgia a relative of one of the employees contacted WHI EX. 7C and told him he had been contacted by the workers also and they were afraid and were leaving to mexico.That worker was contacted by the spokes person and the employee sent me a text confirming her departure because she was scared. (See Ex, B-10&12). CMP computed in WHzard are $$$$$ Recommendation CMPs be assessed MSPA - 18 interfering with DOL official during investigation There were several actions taken by Hamilton representatives that constituted an interference with the investigation by the representatives. The first of which was to have the workers run from the shed and leave the area on order of Michael Norman. Norman in his interview stated that the AGER Kent Hamilton told him to get the workers out of the area' (See Ex. B-8). The AGER denied being on the call with EX. 7C but the VP Mr. John Sprawls confirmed that he was actually on the line with 7C After the workers ran from the packing shed to the Hamilton bus (leaving even the farm produce on the ground) they were taken to the Scottish Inn wherein they were directed to go buy and get luggage to leave. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Page 36 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN: 7C Telephone 7C WHI had been informed by two workers at the motel that they were taken to the local 7C Wal-Mart. (see Ex.B-ffff) we then went to the Wal-Mart where we located the bus owned by Hamilton with the workers loading up the luggage. (See Photo Ex. D-12,13,14). The company representatives again interfered when the workers were contacted by cell phone and told not to speak with investigators. Also several individuals identified as Hamilton workers came to the parking lot (in two different vehicles) and were signaling several of the workers to go with them. WHI Barba was able to obtain drivers license copies of two of them. Unfortunately, the individual in the vehicles were not able to be interviewed. (See photo Ex.D-7&D-8). Several of the workers though told us they were being called by them and told not to speak to us. This seemed to be creating an environment of fear and apprehension between them and WHI so as not to be interviewed. Witnesses also informed WHI 7C and WHI 7C that the workers mistakenly believed the investigators were ICE agents enforcing immigration laws. Not Aggravated, Willful, or Recurring. Civil Money Penalties of $XXX were computed in Whisard. Page 37 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 MSPA violations 19 through 30 do not pertain to agricultural employers as they only are applied to farm labor contractors. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN EX 4 Telephone: 7C CIVIL MONEY PENALTIES A total of $ 20,000 of MSPA non-housing CMPs were computed in Whisard. No housing CMPs were computed in this investigation. A grand total of $20.000 in MSPA Civil Money Penalties were computed in Whisard. Page 38 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 A ?nal conference was held on 12/3/2012 Via telephone conference call. A copy of the Handy Reference Guide to the FLSA was presented to AGER Hamilton at the IC held in Georgia in November 2012. Representing the employer was AGER Kent Hamiltoni John Sprawlsi Attorney Lm Steini Dan Bremmer Ag works. Representing the Department of Labori Wage and Hour Divisioni were WHIs 7C 7C 7C began the ?nal conference by outlining coverage Imder the FLSA and explained that all the employees were individually covered as they were agp'cultural workers harvesting and packing a crop which was destined for interstate commerce. WHI 70 further outlined how entegprise coverage applied to the subject fmn. AGER Hamilton did not dispute that individual and entegprise coverage was applicable. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers Page 39 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: 7C WHI 7C outlined Sections 3 (d) and 16 (b) of the Act. AGER Hamilton did not contest his designation as 3(d) employer. AGER Hamilton acknowledged that he understood the implications of both sections of the FLSA. WHI EX. 7C then outlined coverage under the MSPA. WHI 7C explained the definition of a migrant worker and cited the difference between a migrant worker and a seasonal worker. AGER Hamilton did not dispute coverage under the MSPA and acknowledged the presence of many migrant workers at his farm. WHI 7C discussed the relationship of Hamilton Growers, Inc.and Henderson farms in Dayton TN. I mentioned to Mr.Hamilton that AGER Henderson did not elaborate on his involvement with Hamilton Growers, Inc. He denied having anything to do with Hamilton's workers and stated he was not part of their operation. He stated he made only a verbal agreement with Kent Hamilton and to purchase his produce. He sated that Hamilton sent the workers and controlled them. He stated that the workers were also supervised wholly by Hamilton. He again denied the existence of any written contract between the two companies. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Page 40 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN EX 4 Telephone: 7C WHI EX. 7C forwarded AGER Hamilton the Form WH-517 and explained that the items with checkmarks were considered potential violations. Each violation was discussed in detail and the Ager was informed that he was also charged with interfering in the DOL investigation and Discrimination to workers. The Attorney asked under what basis the department determined interference and discrimination. WHI 7C said that on the issue of interference and discrimination the following was gleaned. The company representatives in Dayton interfered with the investigation by making the workers leave the area so as not to be interviewed. Interfered by trying to preclude the workers from talking to WHI in Wal-Mart parking lot. In addition even after arrival indications are that workers in general at Hamilton were discouraged from talking with WH. As for the discrimination I informed the AGER that several workers in the group maintained contact with and notified me when they were leaving to Georgia. They also told me that they were afraid of what might happen when they got back. They stated that they were afraid and I told them to keep me Page 41 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 informed and I wanted them to relate the events that transpired upon arrival in Georgia. Several employees sent me text messages and also related the conversation Fermin Palomares and Hilda had the day they arrived. (See Ex.B-1thru B-13). MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (MSPA) NARRATIVE Local Filing #: 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 Mailing Address: Hamilton Growers 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: Office: Cell #1: 7C Workers also stated that they were held out of work the next day after arriving. (See Ex.B-1to B-12). They state that Fermin palomares threatened to send them home and hold them back next year and from future contract opportunities. (see B Exhibits B-1 thu B-13) They also stated that packing shed Page 42 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 mana erEx then did not assigp them the same type of work. and now could not take advantage of production rate opportunities as they had prior to going to TN. When the WHI investigators from the Georgia of?ce conducted interviews at the Hamilton farm the workers they interviewed con?rmed the events and statements related earlier. {See Ex. B-l thru 12} WHI 7C explained that these actions could result in MSPA CMPs and that the ?nal determination of any violations and civil money penalties would come from District Director Sanders. AGER Hamilton agreed to comply. But reguested time to review Future correspondence should be addressed to: Mr. Kent Hamilton MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT NARRATIVE Local Filing 2012-253-00716 Case ID #167-0530 Kent Hamilton Hamilton Growers Establishment Address: Hamilton Growers 2775 Ellenton-Nonnan Park Ga.31771 Mailing Address: Hamilton Growers Page 43 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 2775 Ellenton-Norman Park Ga.31771 FEIN: EX 4 Telephone: 7C The recommendation is made that MSPA CMPs be levied as computed. The recommendation is further made that it be taken into consideration that a concurrent investigation is underway in Georgia but because the season under H-2a does not end until December 31, 2012 a final determination cannot be made with respect to employees discussed in his file. The Georgia office determinations will be discussed in case file#........ MODO has been advised of the results of this investigation and I further recommend that this employer be considered for a recidivism case in the future. Publications Provided: HRG to the FLSA, Fact Sheets 35, 44, 49, 69 , Regulations 516, 780, 785, The FLSA, FLSA Poster, MSPA Poster, Wage Statement, OSHA housing checklist, OSHA housing regulations, MSPA 500, FLSA and MSPA NARRATIVE Local Filing #: 2012-253-00716 C167-0530 for Hamilton Growers, Kent Hamilton d/b/a Hamilton Farms Establishment Address: Page 44 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 Hamilton Growers Inc. 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 Mailing Address: 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 FEIN: EX 4 Telephone: Office: 7C This investigative action is comprised of concurrent investigations under the FLSA and MSPA statutes. ADDENDUM A TELEPHONE fc WAS HELD WITH Mr. Hamilton and his Attorney Larry Stein on Dec.7,2013 during which time the Ager agreed with the investigative findings on some eighteen workers that traveled from his farm in Georgia (to Henderson Farms In Evensville TN outside of Dayton Tn). Attorney Stein asked for some time (right after the FC) to review the findings and research the regulations. In January2013 the attorney was contacted by this Investigator and said that Mr. Hamilton agreed to payment and that he would send to Wage Hour a signed WH-56 agreement to pay. Several weeks have passed and on Feb.1st 2013 I contacted Attorney Stein (as directed by DD Sanders) and I was told that the Ager raised a question/concern but just on a few of the workers dates of employment in Tenn. On February 4th, 2013 the attorney stated that it was not a refusal to pay-but that the employer wanted to check the dates. I told Mr. Stein that WH needed to bring this matter to closure get the workers paid. It should be noted that of the eighteen workers on the list-eleven were there at the time of the investigation and the rest had already left the area. Therefore there is some basis for the question on the dates that five or six employees left the farm. Page 45 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 FLSA and FMLA NARRATIVE Local Filing #: 2012-253-00716 C167-0530 for Hamilton Growers, Kent Hamilton d/b/a Hamilton Farms Establishment Address: Hamilton Growers Inc. 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 Mailing Address: 2775 Ellenton-Norman Park Rd Norman Park Ga.31771 FEIN: EX 4 Telephone: Office: 7C This investigative action is comprised of concurrent investigations under the FLSA and MSPA statutes. Addendum continued On Monday he called me back and said he was trying to get a hold of Mr. Hamilton to wrap up the date issues and would forward the signed WH-56 after amending the date and back wages on those workers. Attorney Stein also sent an email stating that he was working on the matter and would respond as soon as he could get in touch with Mr. Hamilton. Attorney Stein said one reason for the difficulty is that the AGER operates a farm in Mexico during the off season. In addition there were various other WH/EEOC issues that came up the same time as Page 46 Hamilton Growers Inc. Southern Valley Fruit Case ID: 1670530 this investigation. Attorney Stein reiterated that the employer has not reneged on the agreement. Recommendation is that DD take into consideration the request and make any CMP assessment deemed appropriate. I will update the DD as soon as I hear back from the Attorney this week. 7C 47