Coosaw Farms Case ID: 1688992 Narrative Report Coosaw Ag, LLC DBA: Coosaw Farms Physical address: 10114 Columbia Hwy Mailing Address: PO Box 646 Fairfax, SC 29827-0646 Tel: (803) 632-2021 Fax: (803) 632-3321 BIN: 20-1938099 Contact: An ela Cha ell Email: A ent: Coverage Reason for investigation: This case was base on a ?led by alleged that Coosaw Farms displaced FLC and US workers, due to the anival of the H2A workers. The stated that he worked with the AGER since 1987 and on 02/25/2013 the AGER informed the that he wouldn't be working at the farm anymore. His- was not substantiated. Coosaw Ag, LLC used services of Low Country Labor Company to apply for H2A workers during the Page 1 Coosaw Farms Case ID: 1688992 2012 and 2013 seasons (see Exhibit D-8a) Investigation Period: The investigation period is 04/01/2011 through 03/28/2013. History: Coosaw Ag, LLC was previously investigated by WHI during the 7C 2009-2011 seasons (case id: 1617287). The employer was found in violation of item #5 Housing fails to meet S&H Standards. Three separate case files were open for housing violations. Coosaw Ag Housing Unit #1 (case id: 1617847), the employer was found in violation of the following H2A items: #26 – Broken Windows; #27 – Openings in shelter not screened with mesh material; #82 – Garbage containers not emptied; #91 - Garbage containers not provided in kitchen area; #94 – No first aid supplies or equipment (see Exhibit D-11k through D-11p). Coosaw Ag Housing Unit #2 (case id: 1617848), the employer was found in violation of the following H2A items: #28 – door not equipped with self closing devices, #94 – No first aid supplies or equipment (see Exhibit D-11q through D-11u). Coosaw Ag Housing Unit #3 (case id: 1617849), the employer was found in violation of the following H2A item: #94 – No first aid supplies or equipment (see Exhibit D-11v through D-11z). The employer agreed to comply in the future and corrected all issues same day or by inspection date. Civil Money Penalties were recommended, but not assessed (see Exhibit D-11a). Other investigations: Case ID #1518889 – FLSA/MSPA/H2A – 2008 – housing violations, $575 CMP's (see Exhibit D-11aa) Case ID #1364129 - FLSA/MSPA - 2004 - housing violations, $1250 CMPs (see Exhibit D-11cc) Case ID #1219971 - FLSA/MSPA - 2002 - housing violations, $1800 CMPs (see Exhibit D-11dd) MODO:The firm is located in Fairfax, SC which is within the jurisdiction of the Columbia District Office (see Exhibit D-1). The case was linked with the previous investigations. Joint Employment Relationship: No joint employment issues. Coosaw Ag LLC does not use Page 2 Coosaw Farms Case ID: 1688992 independent farm labor contractors. All crew leaders are H-2A employees of the firm. Nature of Business: Coosaw Ag LLC is an H2A employer primarily engaged in growing and harvesting watermelons, blueberries, and cabbages. The subject firm grow, harvest and pack for themselves. They do not pack any other AGER's fruits or vegetables. Section 3(d) Employer: Bradley J. O'Neal is the employer as defined in the Section 3(d) of the Act. He is involved in the daily operations of the business, he hires and fires employees, direct their work, and otherwise act in the direct interest of the corporate entity in relation to the employees. Therefore, he is the Section 3(d) employer under the Act (see Exhibit B-10 and C-1). Mapping/Fissuring: Coosaw Ag LLC harvest and packs their fruits and vegetables. They sell directly to stores, such as Costco, Wegmans, Harris Teeter, Publix, Fresh Market, Whole Foods, and Military Produce Group. They also sell to IGA and Piggly Wiggly (see Exhibit D-2). H2A Job Order #1 Contents of Job Offer (20 CFR 655.122) Copies of the form ETA-9142 Applications for Temporary Employment Certification with Appendix A.2 (case number: C-12335-36198 02/01/2013 to 08/01/2013) and forms ETA-790 Agricultural and Food Processing Clearance Order with Attachment Job number # 545802 is enclosed in the case file. The worksite and the housing campsite are the same sites for all hob periods (see Exhibit C-2 through C-3u). A summary of the approved job orders certifications is as followed: EX 4 Page 3 Coosaw Farms Case ID: 1688992 Job Site Address: Allendale County Approved Housing Site(s): (see Exhibits C-3d and D-3) 1176 Pocotaligo Road, Fairfax, SC 29827 580 Fairfax-Barton Road, Fairfax, SC 29827 Transportation Vehicles (see Exhibit through Year Make/Model VIN 1995 Ford Explorer 201 1 GMC P2V Exemptions: The employer exceeded the 500 man day test and was not exempt from the obligation to hire US. workers through the first 50% of both job orders subject to the 2010 regulations. Status of Compliance for Job Order 545802 No violations: Page 4 Coosaw Farms Case ID: 1688992 Item 5: Housing fails to meet Standards: 20 CFR 655.122 WHI 7C and WHI 7C inspected housing on 03/28/2013. The kitchen area did not have a smoke detector and one room did not have a space heater (see Exhibit D-3a). In preparation for the bigger group of H2A workers, the owner painted the walls in the kitchen and took down the smoke detector. The housing site has a total of 7 rooms that have central heating. Two of the H2A workers decided to stay in the last room because it is cooler in the srumner. During the second inspection on 04/01/13, the AGER put the 11p the smoke detector and space heater in Room 4. The housing was located in an appropriate site, housing structure is in great condition, hot water and appropriate washing facility, appropriate toilet facilities, appropriate drainage, appropriate lighting, garbage containers with lids in each kitchen, kitchen area had appropriate dining area and free from spoilage, adequate heating and air for all housing, beds were provided for all workers with adequate spacing, and ?rst aid kits and ?re extinguishers is provided in all housing (see Exhibit D-3a through D-3e). Item 15: FTC-Inbound Transportation Requirement: 20 CFR 655.122 No violations formd. oosaw Farms provided proof of reimbursement (see Exhibit D-9 through D-9z). Item 39: FTC-Recruitment Requirement(s): No violations found. A 7E came from 7C . He was not a corresponding worker, but was a Watermelon Harvest Manager that was paid $25/hour. 7C left oosaw Farm, on his own decision, on J1me 21, 2012. The AGER stated that J1me is one of the most important weeks to get watermelons to the market by July 4, 2012. After July 7C tried to get his job back at oosaw Farm. The AGER made the decision not to bring 70 back. 7C however did have Haitian migrant workers that he brought with him. The AGER made it clear that the workers are welcome to come back, but the AGER and his family are not comfortable taking a chance that 70 will leave them again at their busiest time (see Exhibit B-9 and B-10). oosaw Farm met the requirements for the recruitment. The SWA has determined that no quali?ed applicants were referred to Job Order #545802 for oosaw Farms (see Exhibit D-8 through D-8h). WHI Page 5 Coosaw Farms Case ID: 1688992 7C interviewed applicants on the list to see if they qualified for the position (see B Exhibits). The WHI advise the AGER if they are going to have specific job qualifications for this job, then the same should be applied to the H2A worker. For example, if the AGER request for verifiable resources for U.S. applicant, then the same should apply for H2A workers. H2A Job Order #2 Contents of Job Offer (20 CFR 655.122) Copies of the form ETA-9142 Applications for Temporary Employment Certification with Appendix A.2 (case number: C-12045-32795 02/03/2012 to 6/1/2012) and forms ETA-790 Agricultural and Food Processing Clearance Order with Attachment Job number #521741, is enclosed in the case file. The worksite and the housing campsite are the same sites for all job periods (see Exhibit C-4 through C-5j). A summary of the approved job orders certification is as followed: EX 4 Job Site Address: Allendale County Approved Housing Site(s): (see Exhibits C-5) Page 6 Coosaw Farms Case ID: 1688992 1176 Pocotaligo Road, Fairfax, SC 29827 580 Fairfax-Barton Road, Fairfax, SC 29827 Exemptions: The employer exceeded the 500 man day test and was not exempt from the obligation to hire U.S. workers through the first 50% of both job orders subject to the 2010 regulations. Status of Compliance for Job Order 521741 No violations: Item 17: Transportation failed to meet S&H Requirements: No violations found. Coosaw Farms met requirements for transportation standards (see Exhibit D-5j through D-5o). Item 18: FTC-Outbound Transportation Requirements: No violations found. Coosaw Farms provided proof of reimbursement (see Exhibit D-9 through D-9z). Item 19: FTC – ¾ Guarantees: No violations found. Coosaw Farms met the requirements for the ¾ guarantee. WHI 7C check for ¾ guarantees at establishment. (see Exhibit D-10 through D-10d). 7C and WHI FLSA COVERAGE All workers are individually covered by the Fair Labor Standards Act (FLSA) under Section 3(s)(1)(A)(i). All employees are engaged in the production of “goods” that are expected to move in interstate commerce. During the investigation period, Coosaw Ag LLC employed approximately seasonal workers that were continuously covered by the FLSA. Furthermore Coosaw Ag LLC have report an Annual Dollar Volume (ADV) of EX 4 for the past three years on form 9142 (see Exhibit C-2f). EX 4 Page 7 Coosaw Farms Case ID: 1688992 FLSA EXEMPTIONS Section 13(a)(1): Bradley O'Neil, Angela Chappell, and Brad O'Neil are exempt from minimum wage and overtime as owners. All employees are non-exempt and paid by the AEWR or by the hour. Section 13(a)(6): The exemption from minimum wage and overtime for persons employed in agriculture does not apply to Coosaw Ag LLC. The company used more than 500 man-days of agricultural labor in the 4th calendar quarter of the preceding year. Coosaw Farms used approximately EX 4 workers that worked at least 5 days a week from April through August. Coosaw Ag LLC's crews work every year harvesting watermelon, blueberries, and cabbages from approximately April through August (see Exhibit B-10.) Section 13(b)(12): All of Coosaw Ag LLC hand harvesting workers are exempt from overtime as they are employed in agriculture. FLSA STATUS OF COMPLIANCE Section 6: No violations were found. All factors indicate current compliance in minimum wage laws. Section 7: Not applicable. Section 11: No violation was found for Record Keeping. All factors indicate current compliance with child labor laws Section 12: No violations were found. All factors indicate current compliance with child labor laws (see B Exhibits.) FAMILY AND MEDICAL LEAVE ACT: The subject firm is an industry engaged in commerce, and is covered under FMLA since he employs more than 50 or more workers for each working day during 20 or more calendar workweeks in the current or preceding calendar years. WHI 7C and WHI 7C observed FMLA posters that were posted in the facilities as well as in the camps. Page 8 Coosaw Farms Case ID: 1688992 MSPA COVERAGE Coosaw Farms is an “agricultural employer” as defined under Section 3(2), 3(3) of the Migrant and Seasonal Agricultural Worker Protection Act. AGER is engaged in the cultivation and production of watermelon, which are sold throughout the United States. AGER does not utilize the services of Farm Labor Contractors all the crew leaders are employees of AGER (see Mapping and Fissuring Exhibit D-1.) MSPA Joint Employment No joint employment relationship exists as Coosaw Farms does not use the services of any FLC's, MSPA EXEMPTIONS Coosaw Farms is not exempt from MSPA. Section 3(8)(B)(ii)/(10)(B)(iii): The provisions of MSPA do not apply to temporary nonimmigrant aliens that are authorized to work in agricultural employment in the United States under sections 101(a)(15)(H)(ii) and 214(c) of the Immigration and Nationality Act (H-2A). Coosaw Farms does employ H2A workers. Section 4(a)(1): The Family Business Exemption is not applicable. Coosaw Farms employs workers that are not related to them or their immediate family. Section 4(a)(2): The Small Business Exemption from MSPA does not apply to Coosaw Farms as they exceeded the 500 man day test. MSPA STATUS OF COMPLIANCE No violations were disclosed under MSPA. OSHA COVERAGE Page 9 Coosaw Farms Case ID: 1688992 Coosaw Farms is covered by Field Sanitation Regs., OSHA 1928.110, as agricultural employers of hand harvest workers engaged in cultivation of watermelons, for commerce. On 03/28/13 WHI 7C and WHI 7C were able to enter the fields to conduct inspections. Workers reported sufficient bathrooms, drinking water, cups, soap, paper towels, etc. All factors indicate current compliance with field sanitation regulations (see “B” Exhibits and D-3f through D-3h.) DISPOSITION On April 18, 2013 a final conference was held with Angela Chappell, owner's daughter, via telephone. The WHI explained that housing inspections, Field inspections, and transportation inspections were done on March 28, 2013. On April 1, 2013 all corrections were completed. WHI 7C spoke about recruitment of U.S. workers. WHI 7C advised that if they are going to ask for references for U.S. workers then those same references should be required of the H2A workers. Mrs. Chappell stated that she understood and stated that all qualified U.S. worker, they do try to hire. WHI 7C advised Mrs. Chappell of the potential violations. RECOMMENDATIONS: Since no violation was found, WHI 7C recommends that this case be close administratively. 7C Investigator April 18, 2013 Pubs: H2A Fact Sheets, Posters, and HRG. Page 10