IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA A SOUTHERN DIV SION 90) BERNARDO MENDOZA and FRANCISCO MENDOZA, individually and on behalf of themselves and all others similarly situated, Plaintiffs, 9m V. RONALD AGE, CAROLINA TIMBERLAND SERVICES, INC., and INTERNATIONAL LABOR MANAGEMENT CORPORATION, Defendants. I. PRELIMINARY STATEMENT l. The named plaintiffs and their co?workers are migrant agricultural workers who were recruited in the state of Veracruz, Mexico to work planting pine seedlings for defendants in or around Columbus and Brunswick Counties, North Carolina, during December, 1996 and January, 1997. The named plaintiffs and their co?workers invested substantial resources to come to North Carolina to work for defendants, with the promise of a good job, good wages and decent housing. Instead, defendants did not pay the named plaintiffs and their co-workers for many hours of their labor, and did not provide them with field sanitation facilities, including an adequate supply of potable drinking water, while working. The lack of potable drinking water caused the named plaintiffs and their co-workers to drink water out of nearby canals or ponds, which in turn caused several of the workers, including plaintiff Francisco Mendoza, to become ill. Furthermore, defendants made the named plaintiffs and their co-workers live in housing which was not registered or certi?ed for use as migrant housing. This housing was Case Document 1 Filed 12/18/98 Page 1 of 14 substandard and dangerous in that, among other de?ciencies in violation of the law, it lacked a ?re extinguisher, smoke alarms and had live electrical wires exposed in the sleeping areas. Defendants ultimately ?red the named plaintiffs for exercising their legal rights. Defendants are a North Carolina forestry operations corporation and it?s president/owner, and a North Carolina farm labor recruiting company which acted as the forestry corporation?s agent. 2. The named plaintiffs bring this action individually pursuant to the Fair Labor Standards Act and the North Carolina Wage and Hour Act to secure their unpaid minimum and overtime compensation, liquidated damages, attorneys fees and costs. The named plaintiffs also seek to bring a class action under Rule Fed.R.Civ.P., on behalf of themselves and all other migrant agricultural workers who were recruited, employed and/or housed by the Defendants in 1996 and 1997, for their claims under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1801 et seq. for statutory damages. They also seek declaratory and injunctive relief on behalf of themselves and the class. The named plaintiffs also bring a claim for the retaliatory conduct of the defendants under the AWPA. II. JURISDICTION 3. This Court has jurisdiction over plaintiffs? claims pursuant to 28 U.S.C. 1337 (interstate commerce); 28 U.S.C. 1331 (federal question jurisdiction); 29 U.S.C. 1854(a) 29 U.S.C. 216(b) and the doctrine of supplemental jurisdiction under 28 U.S.C. 1367. Declaratory relief is authorized by 28 U.S.C. 2201 and 2202. II. PARTIES 4. At all times pertinent to this cause, the named plaintiffs, and the class they seek to represent, were migrant agricultural workers, as de?ned at 29 U.S.C. 2 Case 7:98-cv-00228-F Document 1 Filed 12/18/98 Page 2 of 14 engaged in the production of goods for interstate commerce. The named plaintiffs? permanent place of residence is in the state of Veracruz, Mexico. 5. Based on information and belief, at all times pertinent to this cause, defendant Ronald Age, was and is president of Carolina Timberland Services, Inc., a corporation engaged in the production of goods for commerce, and the agricultural employer, within the meaning of the AWPA, 29 U.S.C. 1802(2), the FLSA, 29 U.S.C. 203(d) and N.C.Gen.Stat. of the named plaintiffs and the class they seek to represent. At all times pertinent to this cause, Ronald Age was and is a farm labor contractor employee as that term is used in the AWPA, 29 U.S.C. ?1811(b). 6. At all times pertinent to this cause, defendant Carolina Timberland Services, Inc., (CTS) was and is a corporation with its principal place of business in Elizabethtown, Bladen County, North Carolina, and the agricultural employer, within the meaning of the AWPA, 29 U.S.C. 1802(2), the FLSA, 29 U.S.C. 203(d) and N.C.Gen.Stat. ?95- 252(5), of the named plaintiffs and the class they seek to represent. primary activity is forestry operations, including seasonal reforestation services. CTS was also, at all times pertinent to this cause, a farm labor contractor within the meaning of the AWPA, 29 U.S.C. 1802(7) engaged in the production of goods for interstate commerce. 7. At all times pertinent to this cause, defendant International Labor Management Corporation (ILMC) was and is a North Carolina corporation whose principal place of business is in Vass, Moore County, North Carolina. primary activity and source of revenue is securing temporary foreign workers for employers in North Carolina and elsewhere. For a fee, ILMC makes applications on behalf of its customers for temporary foreign agricultural and non-agricultural workers to the US. Department of Labor, and either directly or through its agents, solicits, recruits, hires, and transports the temporary foreign workers from Mexico to their jobs in North Carolina. ILMC was and is, at all times pertinent to this cause, a farm labor contractor within the meaning of the AWPA, 29 U.S.C. 1802(7). 3 Case Document 1 Filed 12/18/98 Page 3 of 14 RULE 23G)l(3) CLASS ACTION ALLEGATIONS 8. The class of persons that the named plaintiffs seek to represent under Rule Fed.R.Civ.P., for violations of their rights under the AWPA consists of all migrant agricultural workers who were recruited, employed and/or housed by defendants for work during the 1996/ 1 997 forestry operations season of defendants Ronald Age and CTS. 9. The class of persons de?ned in 11 8 above of this complaint consists of more than twenty persons. Joinder of all class members would be impracticable if not impossible based in part upon the fact that many of the class members are migrant workers who reside in Mexico and do not speak the English language. 10. The questions of law or fact are common to the members of this class and they predominate over any other questions affecting only individual members of this class under Rule Fed.R.Civ.P.. 11. The claims of the named plaintiffs who seek to represent the class de?ned in 1] 8 above of this complaint, are typical of the claims of that class of persons in that the defendants recruited, employed and housed the named plaintiffs in a manner which violated their rights and the requirements of the AWPA. 12. The named plaintiffs will fairly and adequately represent the interests of the class. The undersigned counsel for the named plaintiffs is a public interest law ?rm with experience as counsel in class actions both in this Court and in other courts in North Carolina. 4 Case Document 1 Filed 12/18/98 Page 4 of 14 FACTS 13. In the fall of 1996, the named plaintiffs and approximately twenty other workers were recruited near their home in the state of Veracruz, Mexico by Pablo Flores, an agent of defendants ILMC, CTS and Ronald Age, to work in North Carolina planting pine tree seedlings for CTS. 14. Pablo Flores represented to the named plaintiffs and the class members that their housing in North Carolina would be arranged for them by their employer. Pablo Flores further represented to the named plaintiffs and the class members that they would be paid a piece rate of approximately $20.00 to $22.00 per bag of 1000 pine seedlings planted. The named plaintiffs and the class members, however, were only paid $12.50 per bag of pine seedlings planted, and the number of pine seedlings per bag often exceeded 1000. 15. Pablo Flores knowingly provided false or misleading information to the named plaintiffs and the class members concerning the terms and conditions of the employment in North Carolina. 16. At the time they recruited the named plaintiffs and the class members, defendants ILMC, CTS and Ronald Age failed to disclose in writing the terms and conditions of the employment in North Carolina. These disclosures should have been given at the time of the named plaintiffs? and the class members? recruitment and prior to their departure from their place of residence in Mexico. 17. Agents of defendants ILMC, CTS and Ronald Age arranged for visas for the named plaintiffs and the class members to come to the United States to engage in this work under a temporary worker program of the Immigration and Nationality Act, known 5 Case Document 1 Filed 12/18/98 Page 5 of 14 as the program. 8 U.S.C. 1101(a)(15)(H)(ii)(b). The named plaintiffs and the class members paid the costs for their passports, visas and transportation to come to the United States. 18. The named plaintiffs and the class members arrived in North Carolina on transportation arranged by defendants ILMC, CTS and Ronald Age or their agents in early December, 1996. After their arrival, the named plaintiffs and the class members were employed in agriculture by defendants CTS and Ronald Age. 19. During the course of their employment, the named plaintiffs and the class members lived in migrant housing which was provided and controlled by defendants CTS and Ronald Age. 20. Upon their arrival in North Carolina, the named plaintiffs and the class members were taken to the housing referred to in 11 19 above. Due to its ?lthy condition, the named plaintiffs and the class members had to spend several days removing trash, cleaning and painting this housing in order to make it habitable. 21. Defendants CTS and/or Ronald Age engaged in housing the named plaintiffs and the class members, migrant agricultural workers, without being authorized to do so. 22. The housing used to house the named plaintiffs and the class members did not meet the minimum safety and health standards speci?ed under applicable federal and state law. The housing was in an unsanitary and dangerous condition with live electrical wires exposed in the sleeping areas and lacking a ?re extinguisher, smoke alarms, ?rst aid kit, and effective screening on the doors and windows, among other de?ciencies. 23. Defendants CTS and/or Ronald Age failed to obtain the required certi?cation that the named plaintiffs? and the class members? housing met the minimum safety and 6 Case Document 1 Filed 12/18/98 Page 6 of 14 health standards speci?ed under applicable federal and state law prior to its occupancy by any migrant agricultural worker. 24. Defendants CTS and/or Ronald Age failed to post the terms and conditions of the occupancy of the named plaintiffs? and the class members? housing. 25. Defendants CTS and/or Ronald Age failed to post, in a conspicuous place in the named plaintiffs? and the class members? place of employment, a statement of the rights of migrant agricultural workers as required by the AWPA, 29 U.S.C. 1831(b). 26. Defendants CTS and/or Ronald Age did not provide ?eld sanitation facilities to the named plaintiffs and the class members while they worked that were in compliance with the applicable Occupational Safety and Health Act standards, 29 C.F.R. 1928.110. Defendants failed to provide the named plaintiffs and the class members with toilet facilities, handwashing facilities, single-use cups and potable drinking water in suf?cient amounts to meet the needs of all employees. 27. Because of the inadequate supply of drinking water while working, the named plaintiffs and the class members had to drink water from nearby canals or ponds. Several of the workers, including plaintiff Francisco Mendoza, became ill after drinking water ?rm the canals or ponds. 28. Defendant Ronald Age and/or defendant CTS was investigated in 1993-94 and again in 1996 by the United States Department of Labor, Wage Hour Division. During these investigations, defendant Ronald Age and/or defendant CTS was found to be in Violation of the FLSA and numerous provisions of the AWPA with respect to his/their employment of migrant agricultural workers, including workers. 7 Case 7:98-cv-00228-F Document 1 Filed 12/18/98 Page 7 of 14 29. Defendants CTS and/or Ronald Age did not pay the named plaintiffs and their co-workers the minimum wage required by the FLSA for all of the hours of their labor. 30. Defendants CTS and/or Ronald Age did not pay the named plaintiffs and their co-workers overtime wages required by the FLSA for all the hours they worked in excess of forty hours in the work week. 31. The named plaintiffs and their co-workers were routinely required to spend approximately thirty minutes each morning gathering work tools and equipment on their way to the daily worksite. The named plaintiffs and their co-workers, however, were not paid for their time spent engaged in this activity which was for the bene?t of their employers, defendants CTS and/or Ronald Age. 32. Once they arrived at the worksite, the named plaintiffs and their co-workers routinely had to wait approximately one hour for the trailer carrying the pine seedlings to arrive before they could begin their work. The named plaintiffs and their co-workers were not paid for their time spent waiting at the worksite for the pine seedlings to arrive. 33. Defendants CTS and/or Ronald Age failed to make, keep and preserve the pay records required by the AWPA with respect to each of the named plaintiffs and each member of the class. 34. Defendants CTS and/or Ronald Age failed to provide the named plaintiffs with 1996 W-2 Wage and Tax Statements which correctly reported their wages and taxes. 35. Defendants CTS and/or Ronald Age failed to provide each named plaintiff and each member of the class with an itemized pay statement containing the information required by the AWPA. 8 Case 7:98-cv-00228-F Document 1 Filed 12/18/98 Page 8 of 14 36. Defendants CTS and/or Ronald Age made deductions for rent, advances, work boots and other unspeci?ed reasons from the named plaintiffs? and their co- workers? wages without ?rst obtaining written authorization to do so as required by N.C.Gen.Stat. 37. In some weeks the weekly total for the wage deductions referred to in 1] 36 above resulted in reduction of the named plaintiffs? and their co-workers? wages below the minimum wage required by the FLSA. 38. The named plaintiffs caused to be instituted a complaint with the North Carolina Department of Labor, Division of Occupational Safety and Health concerning the condition of the housing in which they were made to live, per their rights and protections afforded by the AWPA. The named plaintiffs had just cause to have this complaint instituted. When defendants CTS and/or Ronald Age learned of the housing complaint, they discharged the named plaintiffs in retaliation for exercising, with just cause, their rights under the AWPA. FIRST CLAIM FOR RELIEF (FLSA) 39. Defendants CTS and/or Ronald Age failed to pay the named plaintiffs the applicable minimum wage rate of $4.75 per hour for all the work they performed for defendant in 1996 and 1997, in violation of 29 U.S.C. 206(a)(1). 40. Defendants? CTS and/or Ronald Age failure to pay the named plaintiffs the minimum wage was willful. 41. Defendants CTS and/or Ronald Age failed to pay the named plaintiffs overtime wages for all the work they performed for defendant in excess of forty (40) 9 Case Document 1 Filed 12/18/98 Page 9 of 14 hours in any work week and pay period in 1996 and 1997, in violation of 29 U.S.C. 207(a)(1). 42. Defendants? CTS and/or Ronald Age failure to pay the named plaintiffs overtime wages was willful. 43. As a result, the named plaintiffs suffered damages. SECOND CLAIM FOR RELIEF (NC Wage and Hour Act) 44. Defendants CTS and/or Ronald Age made weekly wage deductions from the weekly wages of the named plaintiffs for rent, advances, work boots and other unspeci?ed reasons when these defendants had not obtained the written authorization required by N.C.Gen.Stat. to make those wage deductions from the named plaintiffs. 45. Defendants? CTS and/or Ronald Age weekly wage deductions from the named plaintiffs? wages were made willfully. 46. Defendants CTS and/or Ronald Age failed to pay all wages due when those wages were due on the regular payday to the named plaintiffs for all of their labor for these defendants, in violation of N.C.Gen.Stat. 95-256. 47. Defendants? CTS and/or Ronald Age failure to pay the named plaintiffs all of their wages when due was willful. 48. As a result, the named plaintiffs suffered damages. THIRD CLAIM FOR RELIEF (AWPA Class Claims) 49. This claim by the named plaintiffs and the class they seek to represent arises under the AWPA, 29 U.S.C. 1801 et seq. against defendant ILMC. - 10 Case Document 1 Filed 12/18/98 Page 10 of 14 50. ILMC intentionally violated the AWPA with respect to the named plaintiffs and the class they seek to represent by: a) 13) failing to ascertain and disclose to them in writing, in Spanish, at the time of recruitment the information concerning wages and working conditions required by the AWPA, 29 U.S.C. 1821(a); and knowingly providing false or misleading information to them concerning the terms or conditions of their employment, in Violation of the AWPA, 29 U.S.C. 1821(f). 51. As a result, the named plaintiffs and the class they seek to represent suffered damages. FOURTH CLAIM FOR RELIEF (AWPA Class Claims) 52. This claim by the named plaintiffs and the class they seek to represent arises under the AWPA, 29 U.S.C. 1801 et seq. against defendants CTS and/or Ronald Age. 53. CTS and/or Ronald Age intentionally violated the AWPA with respect to the named plaintiffs and the class they seek to represent by: a) 13) failing to ascertain and disclose to them in writing, in Spanish, at the time of recruitment the information concerning wages and working conditions required by the AWPA, 29 U.S.C. 1821(a); knowingly providing false or misleading information to them concerning the terms or conditions of their employment, in violation of the AWPA, 29 U.S.C. 1821(t). failing to make, keep and preserve the payroll records required by the AWPA, 29 U.S.C. 1821(d)(1) with respect to them; failing to provide to each of them, for each pay period, an accurate, itemized written statement of their wages as required by the AWPA, 29 U.S.C. 1821(d)(2); failing to pay to them the wages owed when due, in violation of the AWPA, 29 U.S.C. 1822(a); 11 Case Document 1 Filed 12/18/98 Page 11 of 14 t) engaging in farm labor contracting activities without being authorized to do so, in Violation of the AWPA, 29 U.S.C. 1811(a); g) failing to ensure that the housing used to house them complied with all applicable State and Federal safety and health standards, in violation of the AWPA, 29 U.S.C. 1823(a); h) allowing the housing used to house them to be occupied by migrant agricultural workers without ?rst being inspected and certi?ed by the North Carolina Department of Labor as required by the AWPA, 29 U.S.C. 1823(b); i) failing to post the terms and conditions of occupancy of the housing used to house them in Violation of the AWPA, 29 U.S.C. 1821(c); j) Failing to post in a conspicuous place at their place of employment a statement of the rights of migrant agricultural workers under the AWPA as required by 29 U.S.C. 1821(b); k) Violating without justi?cation the terms of the working arrangements made with them by not paying them the promised piece rate and by failing to provide appropriate ?eld sanitation facilities, as prohibited by the AWPA, 29 U.S.C. 1822(c); 54. As a result, the named plaintiffs and the class they seek to represent suffered damages. FIFTH CLAIM FOR RELIEF (AWPA) 55. This claim by the named plaintiffs arises under the AWPA, 29 U.S.C. 1801 et seq. against defendants Ronald Age and/or CTS. 56. Ronald Age and/or CTS intentionally violated the AWPA, 29 U.S.C. 1855(a), by discharging the named plaintiffs in retaliation for their having exercised, with just cause, their rights under the AWPA. 57. As a result, the named plaintiffs suffered damages. DEMAND FOR A JURY TRIAL 58. Plaintiffs demand a trial by jury on all issues so triable. 12 Case 7:98-cv-00228-F Document 1 Filed 12/18/98 Page 12 of 14 PRAYER FOR RELIEF WHEREFORE, the plaintiffs respectfully pray that this Court grant them the following reliefAssume jurisdiction of this cause; Declare that Defendants violated the plaintiffs? rights under the FLSA, the AWPA, and the North Carolina Wage and Hour Act; Determine that plaintiffs? Third and Fourth Claims may be maintained as a class action and enter an order certifying the class pursuant to Fed.R.Civ.P. 23 Award the members of the class statutory damages in the amount of $500.00 (?ve hundred dollars) for each violation of the AWPA, as provided for by 29 U.S.C. 1854(c)(1); Award the named plaintiffs statutory damages in the amount of $500.00 (?ve hundred dollars) for each violation of the AWPA, as provided for by 29 U.S.C. 1854(c)(1); Award the named plaintiffs their unpaid minimum and overtime wages and unlawful wage deductions plus liquidated damages in an equal amount, pursuant to the FLSA, 29 U.S.C. 216(b); Award the named plaintiffs their unpaid minimum and overtime wages and unauthorized wage deductions plus liquidated damages in an equal amount, pursuant to N.C.Gen.Stat. and Award plaintiffs reasonable attorneys fees and costs of the action, pursuant to 29 U.S.C. 216(b) and N.C.Gen.Stat. Award plaintiffs prejudgment and post-judgment interest according to law; 10) Enjoin defendants Ronald Age and CTS to file amended 1996 W-2 Wage and Tax Statements re?ecting the named plaintiffs' actual earnings and taxes; 11) Grant a jury trial on all issues so triable; and 13 Case Document 1 Filed 12/18/98 Page 13 of 14 12) Award plaintiffs such other relief as this Court deems just and proper. This the 18th day of December, 1998 Respectfully submitted, NORTH CAROLINA JUSTICE AND COMMUNITY DEVELOPMENT CENTER PO. Box 28068 Raleigh, NC 27611 (919) 856-2570 Je?al L. Matzen I Attorney at Law NC #22189 Car ene McNulty Attorney at Law NC Bar 12488 14 Case 7:98-cv-00228-F Document 1 Filed 12/18/98 Page 14 Of 14