IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA RALEIGH DIVISION CRAIG STAN EURY, JR., and KENNETH WHITE, individually and on behalf of all other similarly situated employees of the Employment Security Commission of North Carolina, Plaintiffs, V. Civil Action No. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Defendants. MOTION TO COMPEL PRODUCTION OF DOCUMENTS Plaintiffs, by and through their undersigned counsel, file this motion pursuant to Rule Fed.R.Civ.P., to compel the defendant Employment Security Commission of North Carolina (hereinafter referred to as the to produce all WPPR Performance Appraisal Summary (hereinafter referred to as Summary") and work Planning and Performance Review (hereinafter referred to as documents for any person other than the named plaintiffs who was and/or is employed by the ESCNC as an "Employment Interviewer (hereinafter referred to as "El and/or Rural Manpower Representative I (hereinafter referred to as at any time in the period from November 10, 1986 to the present pursuant to paragraph 7 of the Plaintiff's First Request for Production of Documents to ESCNC. A true and correct copy of the Plaintiff's First Request for Production of Documents to ESCNC is attached. In the alternative, plaintiffs move this Court for an. order compelling the ESCNC to produce all of those same documents subject to a protective order which would restrict the use of those documents by the plaintiffs, their counsel, and the counsel?s employees to this proceeding only. Plaintiffs further move this Court pursuant to Rule Fed.R.Civ.P., for an order awarding attorney fees and the costs of this Motion against the ESCNC. The grounds for this motion are set forth in the Supporting Memorandum.which follows. JONES AVERY Robef? J. Willis P.O. BOX 28270 Raleigh, NC 27611 2949 New Bern Ave. Wakeview Office Condominiums Suite Raleigh, NC 27610 (919) 856-0033 (919) 834*2003 Counsel for Plaintiffs BY: SUPPORTING MEMORANDUM I. STATEMENT OF THE CASE This action was filed on November 8, 1989 by two former RMR I employees of the ESCNC. The plaintiffs's cause of action against the ESCNC arises under the Fair Labor Standards Act 29 U.S.C. Sections 201 et seq. That cause of action is based upon the failure of the ESCNC to pay and compensate them at the wage rate required by 29 U.S.C. Sections 207(a) and 207(0) for any of the substantial number of hours of overtime work that the plaintiffs performed for the ESCNC from November 7, 1986 to July 14, 1989 as RMR I employees of the ESCNC in its Sanford and Rockingham, North Carolina offices. The plaintiffs also seek to represent a statutory class of RMR I's who have also been and/or are being deprived of their overtime wage rates under the FLSA pursuant to the statutory' class action. procedure authorized. by 29 Section 216(b). See plaintiff's Complaint, paragraph 9. The defendant ESCNC filed its Answer in this case on or about December 5, 1989. In that Answer, the ESCNC appears to claim, among other things, that the plaintiffs are excluded from the overtime wage rate requirements of the FLSA based upon the alleged applicability of 29 U.S.C. Section 213(a)(l). See ESCNC's Answer, paragraph 20. II. STATEMENT OF RELEVANT FACTS The defendant ESCNC was served with Plaintiff?s First Request for Production of Documents to ESCNC on November 14, 1989 at the same time that the ESCNC was served with the plaintiffs' Complaint in this action. At no time during or after the forty-five day time period.provided by Rule 34(b), within.which the ESCNC had to provide a written response to that document request did the ESCNC ever serve the plaintiffs with any written response to that document request. However, the ESCNC has produced a number of documents for the plaintiffs based upon informal communications between counsel for the parties to this action. See, Plaintiff's Exhibit 1 attached (copy of a letter dated February 1, 1990 from plaintiff's counsel to defendant's counsel detailing the initial efforts made by the ESCNC on February 1, 1990 to produce documents under the document request which is the subject of this motion). The documents that the ESCNC has produced to date have not included any WPPR or WPPR summary documents other than those that relate to the two named plaintiffs. See Plaintiff's Exhibit 2 attached (copies of letters between counsel for the parties to this action dated May 10, 1990, June 8, 1990, and June 12, 1990), pp. 1-2 (confirming that fact). On May 10, 1990, the plaintiffs? counsel sent counsel a letter requesting that the ESCNC produce a limited number of WPPR and WPPR summary documents under a stipulated protective order materially identical to the one that is described above in the plaintiffs' motion in this Hatter. See Plaintiff's Exhibit 2 attached, pp. 1-2. These WPPR and WPPR summary documents fell directly within the category of documents requested by the plaintiffs in paragraph 7 of their first document request.1 Those documents were sought for all of the RMR 1's and EI I's who were employed in the Sanford and Rockingham offices of the ESCNC from November 10, 1986 to the present. See Plaintiff's Exhibit 2 attached, p. 1. This discovery was sought to allow the plaintiffs' counsel to compare the work of persons like the plaintiffs who were employed as RMR I's who did not receive any overtime compensation under the FLSA with the work of persons who were employed as EI I's during the same time period.as the named plaintiffs who gid_receive overtime compensation during that same time period. Under U.S. Department of labor regulations, one of the "pertinent factors" for determining what an employee?s "primary duty" is for purposes of determining the availability of the exemption that is set forth in 29 U.S.C. Section 213(a)(1) is . . the relationship between his salary and the wages paid other employees for the kind of nonexempt work performed by the supervisor". 29 C.F.R. Section 541.103 (1989) (DOL's standard for determining whether "primary duty" of employee is a "bona fide executive" one under 29 U.S.C. Section See also 29 C.F.R. Sections 541.206(b) 1 Paragraph 7, at page 7, of that attached document request calls for the production of document prepared by the Defendant at any time in the period from January 1, 1965 to the present which sets forth any description of the job duties and/or functions of any employee of the ESCNC who was and/or is employed Employment Interviewer at any time in the time in the time relevant to this lawsuit." The terms "Defendant", "document", and "time relevant to this lawsuit" are specifically defined in paragraphs 5, 9, and 10 of the Instructions to that same document request. See Plaintiff's First Request for Production of Documents to ESCNC (hereinafter referred to as the "document request?), pp. 2?5 (copy attached). 5 (l989)(same test applies for application of "administrative" exemption under 29 U.S.C. Section The WPPR and.WPPR.summary documents that the plaintiffs sought are documents that the ESCNC prepares on a periodic basis pursuant to a statutory mandate for each of its employees to assist it in evaluating the performance of each of those employees. See N.C.Gen.Stat. Section Those documents contain the ESCNC's own description of the discrete job tasks which each employee was supposed to perform, a description by the ESCNC of whether that employee actually performed those job tasks, and a numerical indication (by percentage) of the amount of that employee's work time that is occupied by the performance of those same discrete job tasks. See Plaintiff's Exhibit 3 attached (sample of WPPR summary for one of the named plaintiffs). The defendant?s. own answers; to interrogatories ,propounded.?to 'them indicate that the plaintiffs (who were employed as RMR 1's) and other ESCNC employees who ?were employed as EI I's performed essentially the same "primary duty" for wages that were relatively equal. See Plaintiff's Exhibit 4 attached (ESCNC's answers and amended answers, to interrogatory' numbers 1 and 4 indicating position grade, salary range and/or actual salary paid to the named plaintiffs and EI I employees who were actually employed in the same office with the named plaintiffs and ESCNC's own sworn answer to an interrogatory which called for the ESCNC to provide a "specific description of each job function and/or duty that formed the "primary duty" of that employee during each pay period during the time relevant to this lawsuit"), pp. 3?4 and 12-13 (comparative wage salary, position grade, and/or salary range data for the named plaintiffs and two EI I's who were employed in the same office with them), and pp. 7~8 (indicating that the "primary duty" of the named plaintiffs and the EI I?s who worked with them were very much the same). By letter dated June 8, 1990, the ESCNC, through its counsel, declined to produce any such WPPR and WPPR summary documents for any ESCNC RMR I and I employee other than the two named plaintiffs based upon the provisions of N.C.Gen.Stat. Sections 126- 24 and 126-27. See Plaintiff's Exhibit 2 attached, p.3. At the same time, the ESCNC also refused to agree to entry of a protective order under Rule 26(0), Fed.R.Civ.P., which would restrict the use of any such documents by the plaintiffs, their counsel, and the staff of p?aintiffs? counsel to this litigation. Plaintiff's Exhibit 2 attached, pp. 3 and 5. Instead, the ESCNC insisted that the plaintiffs could only obtain those documents by means of a motion to compel under Rule Plaintiff?s Exhibit 2 attached, pp. 3 and 5. This motion then became necessary. ARG NT A. The Standard for the Scope of Permissible Discovery Under the Federal Rules is Quite Broad "Rules 26 through 37 of the Federal Rules have been interpreted liberally to allow maximum discovery. Hickman V. Ta lor, 329 U.S. 495, 67 385, 91 451 (1947). It is clear that what is relevant in discovery is far different from what is relevant at trial, in that the concept at the discovery stage is much broader. See C. Wright, Law of Federal Courts 403 (1976). Discovery is 7 designed to define and clarify the issues. If requested materials are reasonably calculated to lead to discovery of admissible evidence, the discovery request is relevant. Weddington v. Consolidated Rail Cor ., 101 F.R.D. 71, 73 1984); Alliance to End Re ression v. Rockford, 75 F.R.D. 441, 444 1977). Therefore, discovery requests should be complied with if there is a reasonable possibility that the information sought may be relevant to the subject matter of the action. Sherman Park Community Association v. Wauwatosa Realty, 486 F.Supp. 838, 845 (E.D.Wisc. 1980). Furthermore, the burden of showing that the requested discovery is not relevant to the issues in this litigation is clearly on the party resisting discovery. Flora v. Hamilton, 81 F.R.D. 576, 578 (M.D.N.C. 1978); Zucker v. Sable, 72 F.R.D. 1, 3 (S.D.N.Y. 1975). Shell V. McDaniel, 591 F.Supp. 1090, 1114-15 (E.D.N.C. 1984). B. The ESCNC Has the Burden of Establishing the Existence of Any Discovery Privilege Under Federal Law That It Asserts Under applicable precedent, . . the party objecting to discovery on the basis of any privilege has the burden of establishing the existence of that privilege". ell v. McDaniel, 591 F.5upp. at 1116. In that same ?pgll case, Judge Fox went on to say: "Evidentiary privileges operate to exclude relevant information from the fact finder and thus are not favored. The Supreme Court in addressing the general issue of evidentiary privileges has stated: "Whatever their origins, these exceptions to the demand for every man's evidence are not created nor expansively construed for they are in derogation of the search for the truth." The law will sustain a claim of privilege only when absolutely necessary to protect and preserve an interest of significant public importance that the asserted privilege is designed to serve." Spell. McDaniel, 591 F.3upp. at 1116. (citations, omitted) (quotation marks in original). Furthermore, because this case is a non-diversity case, federal privilege law, and pg: state law, applies. Snell v. McDaniel, 591 F.3upp. at 1119. Under federal law, the plaintiffs's counsel is aware of no federally recognized discovery privilege for any employee personnel records such as the WPPR and WPPR summary documents involved in this motion based upon N.C.Gen.8tat. Sections 126?24 and 126~27. C. The ESCNC Has Waived Any Objection On the Basis of Any Privilege or other Grounds Under Rule 34(b), the ESCNC had forty?five (45) days after it was served with the document request in this case on November 14 within which to serve the plaintiffs with any objection(s) that it had to the plaintiffs' discovery of all of the documents sought by the plaintiffs in that document request. The ESCNC failed to file any timely objection. Therefore, it has waived any right that it had to claim any discovery privilege or objection to the plaintiffs' discovery of all ESCNC documents that fall within the category of documents described in paragraph 7 of the document request. Howard V. Malcolm, 27 W.H.Cases 1113, 1117 (E.D.N.C. 1986)(copy attached), and cases cited therein. D. The Documents Sought by the Plaintiffs Are Reasonably Calculated to Lead.to the Discovery of Admissible Evidence As indicated in part II above of this Memorandum, pp. 5?6, the documents that are sought by the plaintiffs contain information which is directly relevant to the issue of fact that must be resolved in this case whether the ESCNC was exempt under 29 U.S.C. Section from any obligation under 29 U.S.C. Sections 207(a) and 207(0) to compensate the former RMR I plaintiffs in this case at the overtime wage rate required by Sections 207(a) and 207(0). As part of its proof in this case, the plaintiffs will need evidence to rebut the affirmative defense under Section 213(a)(1) that the ESCNC has raised. Part of that evidence will consist of documentary proof in the form of WPPR and WPPR summary documents which will tend to show What the "primary duty" of the plaintiffs was during the time they were employed by the ESCNC as RMR I?s. See Clark v. J.M. Benson Co., 789 F.2d at 286~87. Under applicable DOL regulations, the issue of what an employee's "primary duty" was is determined by a number of things, including, but not limited to: (1) the percent of the employeefs time that was devoted to exempt duties involving managerial duties, the supervision of other employees, and/or "office or nonmanual work directly related to management policies or general business operations" of the ESCNC. 29 C.F.R. Section 541.206(a) (1989). See also 29 C.F.R. Sections 541.103, and 541.206(b) (1989), and Clark v. J.M. Benson Co., Inc., ggpga; (2) the relationship between the alleged exempt employee's salary and the wages paid other employees for the kind of nonexempt 2 Under controlling precedent, the ESCNC has the burden of proof under the FLSA to both plead and prove as an affirmative defense any? exemption ?that. it ?claims 'under* 29 Section 213(a)(1). Clark V. J.M. Benson Co., Inc., 789 F.2d 282, 286 (4th Cir. 1986). 10 work performed by the alleged exempt employee. 29 C.F.R. Sections 541.103 and 541.206(b) (1989). The information that appears WPPR and WPPR summary documents contains ESCNC's own records as 1x: the percent of RMR I time devoted to "nonexempt" and "exempt" work as well as information as to the type of work that RMR I's and EI I's were performing. See Plaintiff's Exhibit 3 attached (sample WPPR and WPPR documents). The ESCNC has already provided sworn interrogatory answers that indicate that the plaintiffs and those same El I employees were performing essentially the same "primary duty" for the ESCNC for almost the same, if not the same, wage. See Part II of this Memorandum above, pp. 6?7 (concerning Exhibit 4 attached). As such, the record establishes that the plaintiffs? request for those documents is reasonably calculated to lead to the discovery of admissible evidence with respect to both of the enumerated evidentiary points cited in the immediately preceding paragraph above. Another part of the evidence that the plaintiffs will introduce to rebut any proof offered by the ESCNC as to the applicability* of the Section 213(a)(1) exemption. will include evidence which tends to show that the "primary work? performed by the plaintiffs did peg involve "work requiring the exercise of discretion and independent judgment" or'work "work.directly related to management policies or general business operations". 29 C.F.R. Sections and (1989). See Clark v. J.M. Benson Inc., 789 F.2d at 287?88 (availability of Section 11 213(a)(1) exemption from overtime requirements depends, in part, on whether the "primary duty" "includes work requiring the exercise of discretion and independent judgment") . The WPPR and WPPR summary documents prepared by the ESCNC which describe that work in detail would be some evidence of the kind of work that the plaintiffs actually performed. E. Any Interest That the ESCNC Has In the Confidentiality of Employee Records Under State Law Would Be Adequately Served By the Protective Order the Entry of Which the Plaintiffs were Willing to stipulate to Even if N.C.Gen.3tat. Sections 126?24 and 126?27 do provide some legal basis upon which to create a new discovery privilege under federal law3, the plaintiffs submit that the public policy considerations which motivate that statute would be adequately served by a protective order provision which.would restrict the use of the documents involved. by the ;plaintiffs, the jplaintiffs' counsel, and the staff of plaintiffs' counsel to this litigation. See, Pete Phillips. et al. v. Melvin Bright, et al., Civil Action No. (E.D.N.C. Order filed May 1, 1984) 3 Judge Fox of this district refused to create a discovery privilege under an analogous North Carolina statute, N.C.Gen.stat. Section. 160A-168, based upon. a provision in that law 'which "specifically allows disclosure of the entire file by order of a court of competent jurisdiction". Spell v. McDaniel, 591 F.Supp. at 1119, citing N.C.Gen.Stat. Section The North Carolina. statute at issue Ihere, N.C.Gen.Stat. Section 126~24, contains a Virtually identical provision which also allows any person "by authority of a.gnoper court order? to "inspect and examine a particular confidential portion of a State employee's personnel file". N.C.Gen.stat. Section Based upon the existence of this statutory authority under North Carolina law and the authority of this Court under Rules 26(b)(1) and the plaintiffs submit that Section 126~24 does not create any discovery privilege. Spell v. McDaniel, supra. 12 (McCotter, U.S. pp. 4?5 (Court.balances plaintiffs' need for discovery information against ESCNC's statutory concern for the confidentiality of its agency records by entering protective order similar to the one that the plaintiffs were willing to agree to in this case). See also Carr v. Monroe Manufacturing Co., 431 F.2d 384 (5th Cir. 1970) (same result with respect to Mississippi state employment service records). In their Motion in this matter, the plaintiffs have continued to indicate that they will not oppose the entry of such a protective order under Rules 26(c) and 37(a)(2) by specifically moving for such a provision in the alternative part of their Motion in this matter. See page two above of this pleading. E. The Position of the ESCNC In This Matter Was Not Substantially Justified Rule 37(a)(4) provides, in pertinent part, that: . . the court shall, after opportunity for hear? ing, require the party . . . whose conduct necessi~ tated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circum~ stances make an award of expenses unjust." (emphasis added). The plaintiffs submit that the present record leaves no doubt that the position of the ESCNC in this matter is not "substantially justified". Based upon the issues in this case, the discoverability of the documents involved in this motion cannot be reasonably disputed. ell v. McDaniel, su ra, and Part D. of this memorandum, pp. 9m12 above. The ESCNC has waived any 13 right it had to object to the production of those documents by its failure to object in a timely fashion to paragraph '7 of the plaintiffs' document request. Howard v. Malcolm, supra. Through previous litigation involving the plaintiffs' present counsel and the ESCNC, the ESCNC and its current and then General Counsel, T. S. Whitaker, are well aware of applicable caselaw both within and without this district which has balanced the type of statutory interests which form the basis for N.C.Gen.stat. Sections 126?24 and 126~27 with a plaintiff's need for discovery by means of a protective order which the plaintiffs do not oppose and were willing to stipulate to the entry of without the need for any significant judicial consideration. Pete Phillipsl et ail. v. Melvin Bright. et al., supra, and.Carr v. Monroe Manufacturing Co., sappa. Simply put, the ESCNC's concerns for confidentiality under Sections 126?24 and 126w27 do not justify requiring the plaintiffs to go to the time and expense to file this motion when the plaintiff had.expressly indicated their'willingness to resolve this matter without any formal judicial intervention through entry of a stipulated protective order by this Court. The plaintiffs submit that recalcitrant conduct of this type is exactly the type of conduct that warrants immediate sanctions under Rule IV. CONCLUSION For the reasons set forth above, the plaintiffs submit that their Motion, as set forth above, should. be granted in its entirety. l4 BY: 15 JONES AVERY Rabert J. Willis P.O. BOX 28270 Raleigh, NC 27611 2949 New Bern Ave. Wakeview Office Condominiums Suite 106-B Raleigh, NC 27610 (919) 856-0033 (919) 834~2003 Counsel for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA RALEIGH DIVISION CRAIG STAN EURY, JR., and KENNETH WHITE, individually and on behalf of all other similarly situated employees of the Employment Security Commission of North Carolina, Plaintiffs, COMPLAINT V. EMPLOYMENT SECURITY COMMISSION OF Civil Action NO. NORTH CAROLINA, Defendants. FIRST REQUEST FOR PRODUCTION OF DOCUMENTS To: Employment Security Commission of North Carolina Pursuant to Rule 34, Federal Rules of Civil Procedure, plaintiffs request the above-named defendant to produce the following documents, records, and/or data for inspection by plaintiffs and/or the representative(s) of the plaintiffs at the offices of counsel for that defendants, 700 Wade Ave. Raleigh, North Carolina, on Monday, January 8, 1990 beginning at 1 PM and continuing from day ix) day until completion. Plaintiffs also request that the defendant organize and label the documents, records, and/or data requested below to correspond with the numbered categories of this request. Plaintiffs further request K?F?S?Licwc Leda-BO the abovemnamed defendant to permit the representative(s) of the plaintiffs to maintain custody of the documents produced by the defendant for a reasonable period of time to provide them with a reasonable opportunity for copying of those materials in accordance with Rule 34, Fed.R.Civ.P. PLEASE TAKE NOTICE THAT RULE 34 REQUIRES THAT YOU SERVE A WRITTEN ANSWER TO THIS REQUEST UPON THE ATTORNEY WITHIN (45) DAYS OF THE DATE THAT THE COMPLAINT AND SUMMONS IN THIS ACTION ARE SERVED ON YOU. INSTRUCTIONS 1. Defendant is under a duty to produce all documents listed below that are in that Defendant's possession, custody, or control. The concept of "control" includes, but is not limited to, the legal right to obtain materials or documents which are not actually within the defendant?s immediate physical possession. 2. A request requiring a response in the singular includes a response in the plural, and a request requiring a response in the plural includes a response in the singular. 3. You are under a continuing duty to supplement seasonably your response to any request for documents containing discoverable matters and to correct any response you later learn is incorrect. 4. Unless otherwise specified, any reference to the "Plaintiff" in this request refers to Craig Stan Bury, Jr. and/or Kenneth White. 5. Unless otherwise specifically stated, when used anywhere in this discovery request or in the Instructions to this discovery request, the term "Defendant" includes defendant Employment Security Commission of North Carolina, any agents, officers, principals, employees, representative(s), and/or directors of the Employment Security Commission of North Carolina, acting together, separately, independently, or in any possible combination. 6. Unless otherwise specifically indicated, the phrase "bona fide executive capacity" when used in this discovery request shall be defined as it is under the Fair Labor Standards Act 29 U.S.C. Section 213(a)(l), and the interpretative regulations promulgated by the U.S. Department of Labor that are set forth in 29 C.F.R. Sections 541.101 - inclusive. 7. Unless otherwise specifically indicated, the phrase "bona fide administrative capacity" when used in this discovery request shall be defined as it is lHKk?? the FLSA, 29 U.S.C. Section 213(a)(l), and the interpretative regulations promulgated by DOL that are set forth in 29 C.F.R. Sections inclusive. 8. Unless otherwise specifically indicated, the phrase "bona fide professional capacity" when used in this discovery request shall be defined as it is under the FLSA, 29 U.S.C. Sections 213(a)(l), and the interpretative regulations promulgated by DOL that are set forth in 29 C.F.R. Sections inclusive. 9. This Request for Production refers to the period from November 10, 1986 to the present unless otherwise specifically indicated, and the phrase "time relevant to this lawsuit" shall refer to that same time period when used anywhere in this discovery request. 10. Unless otherwise specifically stated, when used anywhere in this discovery request or in the Instructions to this discovery request, the words "document", "documents", "record", and "records" shall include, without limitation, the original and any' non- identical copy of any written, recorded, or graphic matter, however produced or reproduced, whether or not in the possession, custody or control of the Defendant and whether or not claimed to be privileged against discovery on any ground, including, but not limited to, forms, reports, annual reports, minutes, meeting notices, agendas and summaries pertaining to all meetings (formal or informal), handouts, diaries, calendars, summaries, studies, research and reports, lists, computer records, memoranda, notes, correspondence, schedules, sound recordings, films, videotapes, transcripts of telephone conversations or other conversations or conferences, books, pamphlets, letters, personal notes, telegraphic messages, carbon copies, electronic or mechanical transmissions, data sheets, financial statements, cancelled and uncancelled checks, drafts, certificates of deposit, invoices, accounting statements, tickets, expense records, vouchers, working papers, drafts of contracts, drafts of letters, charts, printing, airplane tickets, flight plans, income tax returns, phonograph records, maps, plats, microfilms, microfiches, microprints, photographic negatives, photographic prints or slides, receipts,? drawings, deposit slips, banking records, journal, account book, telephone log, telephone message record, time slip or any other forms of writing or material of any kind. "Document" and "record" shall include official corporate documents as well as documents maintained personally in handwriting or otherwise by the Defendant. "Document" and "record" shall also include all drafts or versions thereof. 11. In the event that you claim that any document sought by this discovery request is not subject to discovery on the ground- of any privilege, state with respect to each such document the following: The date of the document The type or nature of the document letter, business record, etc.) The present location and custodian of the document The basis on which you claim privilege A general description of the contents of the document sufficient to support the claim of privilege The document request paragraph number and/or subpart to which each document relates 12. When used in this discovery request, unless otherwise specifically stated, any phrase, term, or word shall be defined as they are under the Fair Labor Standards Act, 29 U.5.C. Sections 201 et seq., and the regulations promulgated by the U.S. Department of Labor under that Act that were effective in 1989. 13. Any request for any document set forth in this discovery request to any person or entity designated in this discovery request shall not include any documents that were prepared by any attorney(s) or any other person(s) operating under the instruction and/or control of that attorney(s) who have prepared and/or obtained any such documents in bona fide preparation for or in reasonable anticipation of any of the claims the Plaintiff has raised in this action to the extent that the work product, mental impressions, or opinions of that attorney(s) or such person(s) are privileged under the "work product" doctrine of Hickman V. Taylor. DOCUMENTS TO BE PRODUCED l. The original(s) of all payroll records for the Plaintiff which show any of the information described in 29 C.F.R. Section attached) at any time relevant to this lawsuit. 2. The original(s) of all payroll records for the Plaintiff which show any of the information described in 29 C.F.R. Section attached) at any time relevant to this lawsuit. 3. The original(s) of all documents identified. by the Defendant in the Defendant?s response to any interrogatory propounded to the Defendant by the Plaintiff in the Plaintiff?s First Set of Interrogatories to Employment Security Commission of North Carolina in this action. 4. For the time relevant to this lawsuit, with respect to the local offices of the Employment Security Commission of North Carolina located in Sanford and Rockingham, North Carolina, any document which set forth the manner and degree of participation of the Plaintiff in the part(s) of the "annual outreach plan" (as defined in 20 C.F.R. Section attached) which was to be implemented by the Plaintiff. 5. For the time relevant to this lawsuit, any "daily logs" (as defined in 20 C.F.R. Section attached) which reflect the nature and/or type of any work performed by the Plaintiff on a daily basis during that time. 6. For the time relevant to this lawsuit, any documents that set forth any description of the nature and/or type of any work performed by the Plaintiff during that time as observed and/or reported by the State Migrant and Seasonal Farm Worker Monitor Advocate(s) (hereinafter referred to as the "Monitor Advocate") in any document containing? the "formal monitoring review" report prepared by that Monitor Advocate (as defined in 20 C.F.R. Section attached). 7. Any document prepared by the Defendant at any time in the period from January 1, 1965 to the present which sets forth any description of the job duties and/or function(s) of any employee of the Employment Security Commission of North Carolina who was and/or is employed as a Rural Manpower Representative I (hereinafter referred to as Rural Manpower Representative II (hereinafter referred to as or Employment Interviewer at any time in the time relevant to this lawsuit. 8. The original of any document which the Defendant intends to submit as evidence and/or as an exhibit in any trial and/or hearing in this action. 9. The original of any time records and/or logs completed by the Plaintiff on a daily, periodic, and/or weekly basis which set forth any information concerning the hours of employment with the Defendant and/or daily job activities of the Plaintiff while employed by the Defendant at any time relevant to this lawsuit. 10. Any document which set forth the terms and conditions of any compensatory time off policy and/or regular practice that was in effect or in use at any time relevant to this action. 11. Any document which set forth any "recommendation" made by the North Carolina Office of State Personnel to the Defendant under 25 NCAC 1D Section .1941 for any "change" in the list of exempt employees under 29 U.S.C. Section 213(a)(1) and 25 NCAC 1D Section .1941. 12. Any document prepared and/or used by the Defendant under 25 NCAC 1D Section .1941 to determine that any employees of the Defendant Employment Security Commission of North Carolina employed as I?s at any time since January 1, 1965 were "exempt" employees under 25 NCAC 1D Section .1941 and 29 U.S.C. Section 213(a)(i). Robert J. Willis 1306 Hillsborough Street Raleigh, NC 27605 (919) 834~2003 Counsel for the Plaintiffs (7-Iw87 Edition) this part. Howev- subject to any pro~ labor Standards ended {hereinafter is required containing the in- a required by the If this part. The thitained and pre? :11 or other basic an automatic word memory provided iection or viewing ale. that the repro? identifiable by nd that extensions t? the information rt are made avail- Ltz?ons. The regula? divided into two It A of this part rements generally players employing including the re- to the posting of then and location recordkeeping re~ layers of employ- ie minimum wage 6 or the minimum tection 6 and the ans of section addition, section tquirements relat- Lministratlve. and ice (including aca- 'e personnel or cry or secondary sales employees. is part deals with data which must rs (other than ex- ve. etc, employ- to any of the ex- the Act. This ice the records .5 from and addi? >oard, lodging, or industrial mployees whose vard wages. The 3 of this part re. of more, less. or ormation or data the generally ap? ag requirements Wage and Hour Division, Labor Relationship to other recordkeep- ing and reporting requirements. Noth- ing in 29 CFR Part 515 shall excuse any party from complying with any recordkeeping or reporting require- ment imposed by any Other Federal. State or local law, ordinance. regula- tion or rule. Suhpari A?nGeneroi Requirements 516.2 Employees subject to minimum wage or minimum wage and overtime provisions pursuant to section 5 or sec? tions 6 and 7(a) of the Act. (3.) Items required. Every employer shall maintain and preserve payroll or other records containing the following information and data with respect to each employee to whom section 6 or both sections 6 and 7(3) of the Act apply: (1) Name in full. as used for Social Security recordkeeping purposes. and on the same record, the employee?s identifying symbol or number if such is used in place of name on any time. work, or payroll records. (2) Home address. including zip code. (3) Date of birth. if under 19. (4) Sex and occupation in which em- ployed (sex may be indicated by use of the prefixes Mr.. Mrs. or Ms.) (Employee?s sex identification is relat- ed to the equal pay provisions of the Act which are administered by the Equal Employment Opportunity Com- mission. Other equal pay recordkeep~ ing requirements are contained in 29 CFR Part 1620.) (5) Time of day and day of week on which the employee's workweek begins (or for employees employed under; section Wk) of the Act. the starting time and length of each em- ployee's work period). If the employee is part of a workforce or employed in or by an establishment all of whose workers have a workweek beginning at the same time on the same day, a single notation of the time of the day and beginning day of the workweek for the whole workforce or establish- ment will suffice. (5X1) Regular hourly rate of pay for any workweek in which overtime com- pensation is due under section 7(3) of the Act. (ii) explain basis of pay by in- dicating the monetary amount paid on a per hour. per day, per week. per 79 ?516.2 piece. ccnunission on sales. or other basis, and the amount and nature of each payment which. pursuant to section 7(a) of the Act. is excluded from the ?regular rate" (these records may be in the form of vouchers or other payment data). (7) Hours worked each workday and "total hours worked each workweek (for purposes of this section, a "work- day" is any fixed period of 24 consec: tive hours and a. "workweek" is any ?xed and regularly recurring period of consecutive workdays). (8) Total daily or weekly straight- time earnings or wages due for hours worked during the workday or work- week. exclusive of premium overtime compensation, (9) Total premium pay for overtime hours. This amount excludes the straight?time earnings for overtime hours recorded under paragraph . m. (10) Total additions to or deductions from wages paid each pay period in- cluding employee purchase orders or wage assignments. Also, in individual employee records, the dates, amounts, and nature of the items which make up the total additions and deductions. (11) Total wages paid each pay period. (12) Date of payment and the pay period covered by payment. Records of retroactive payment of wages. Every employer who makes retroactive payment of wages or com- pensation under the supervision of the Administrator of the Wage and Hour Division pursuant to section 16(0) and/or section 17 of the Act, shall: (1) Record and preserve, as an entry on the pay records. the amount of such payment to each employee, the period covered by such payment, and the date of payment. (2) Prepare a report of each such payment on a receipt form provided by or authorized by the Wage and Hour Division, and preserve a. copy as part of the records, (ii) deliver a. copy to the employee, and file the origi- nal. as evidence of payment by the em- ployer and receipt by the employee. with the Administrator or an author? ized representative within 10 days after payment is made. pi. and the parcel?: than a casual or a u- yuan;- 31.2 De?nitions. us may no appropri- ate in the circumstances. Hearing ottl~ ?5l6.3 Employees working on fired schedules. With respect to employees working on fixed schedules. an em- ployer may maintain records showing instead of the hours worked each day and each workweek as required by paragraph of this section. the schedule of daily and weekly hours the employee normally works. Also. (1) In weeks in which an employee adheres to this schedule. indicates by check mark. statement or other method that such hours were in fact actually worked by him. and (2) In weeks in which more or less than the scheduled hours are worked, shows that exact number of hours worked each day and each week. ?515.3 Bone fide executive. administm. tive. and professional employees (in- cluding academic administrative per- sonnel and teachers in elementary or secondary schools), and outside sales employees employed pursuant to sec~ tion l3(a)(l) of the Act. With respectto each employee in a bona fide executive. administrative. or professional capacity (including em- ployees employed in the capacity of academic administrative personnel or teachers in elementary or secondary schools), or in outside sales. as defined in Part 541 of this chapter (pertaining to so?called ?white collar? employee exemptions), employers shall maintain and preserve records containing all the information and data required by ?516.2(a) except paragraphs (6) through (10) and. in addition. the basis on which wages are paid in suffi- cient detail to permit calculation for each pay period of the employee's total remuneration for employment including fringe benefits and prerequi- sites. (This may be shown as the dollar amount of earnings per month. per week. per month plus commissions. etc. with appropriate addenda such as ?plus hospitalization and insurance plan ?benefit package ?2 weeks paid vacation." etc.) 516.4 Posting of notices. Every employer employing any em- ployees subject to the Act's minimum wage provisions shall post and keep posted a notice explaining the Act. as prescribed by the Wage and Hour Di- 29 on Ch. (7?1?37 mason) vision. in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy. Any employer of employees to whom section 7 of the Act does not apply because of an ex~ emotion of broad application to an es- tablishment may alter or modify the poster with a legible notation to show that the overtime provisions do not apply. For example: ?Overtime Provi- sions Not Applicable to Taxicab Driv- ers (Sec. 516.5 Records to be preserved 3 years. Each employer shall preserve for at least 3 years: Payroll records. From the last date of. entry. all payroll or" other records containing the employee infor- mation and data required under any of the applicable sections of this part, and Certi?cates, agreements, plans, notices, etc. From their last effective date. all written: (1) Collective bargaining agreements relied upon for the exclusion of cer- tain costs under section 3(m) of the Act. (2) Collective bargaining agree- ments. under section or 7033(2) of the Act. and any amendments or ad? ditions thereto. (3) Plans. trusts, employment con- tracts, and collective bargaining agree- ments under section We) of the Act. (4) Individual contracts or collective bargaining agreements under section of the Act. Where such contracts or agreements are not in writing. a written memorandum summarizing the terms of each such contract or agreement. Written agreements or memoran- da summarizing the terms of oral agreements or understandings under section 7(g) or 7(1) of the Act, and (6) Certi?cates and notices listed or named in any applicable section of this part. Sales and purchase records. A record of (1) total dollar volume of sales or business. and (2) total volume of goods purchased or received during such periods (weekly. quar- terly. etc), in such form as the em- 80 a mam! rug. I'm-awn. .. (mu-v A 31' uwwu. nu- y-y- um_ I y. Wage and Hour Division, ployer maintains records i: nary course of business. ?516.6 Records to be preserve (3.) Supplementary has: Each employer required t1 records under this part she for a period of at least 2 yea Basic employment on records. From the date of all basic time and ear-run; sheets on which are enters starting and stopping time 1131 employees. or of SEDE forces. or the amounts of pushed by individual empl: daily, weekly. or pay perioc example, units produced) amounts determine in WhOli the pay period earnings 0] those employees. Wage rate tables. Fron effective date, all tables or of the employer which piece rates or other rates in puting straighvtime earnir or salary. or overtime pay tion. Order, shipping. a records: From the last datl the originals or true copies isomer orders or invoices re coming or outgoing shippin ery records. as well as a lading and all billings to (not including individual a cash register tapes or the the employer retains or me usual course of business ope: Records of additions tc tions from wages paid: Those records relating ual employees referred and I (2) All records used by the the original atmg and maintenance cos preciation and interest char: costs and charges are invol additions to or deductions i: paid. ?516.7 Place for keeping recoi- availability for inspection. Place of records. Each shall keep the records requ'u part safe and accessible at tl places of employment. or more established central r. C4-l-88 Edition) 1 MSW. assist- to Speci?c titles currently red in. 16 Wipes of em- es which will the date on mates that he/ ?owing his/her preparation of related com. equent referral cal office com- officer manag. ortive services :11 or a family ace in making 13mg transpor. SFWs or mem- end from local late agencies. 3 Shall make are necessary dc to the max. the assistance 15 mm and foregoing out- ?3 agency shall of JS services 1fi?WSmoper and 11W. Contacts :e community 01' employer ET 011135 also etc the widest information shall be alert nd living can- Jpon observe- 5 information nation of fed- :t-related law, mation tn than quA Employment ?and Training Administration, Labor pursuant to uniform guidelines developed by ETA. and each State?s program shall be reviewed and commented upon in advance by the State MSFW Monitor Advocate. During months when outreach activities are conducted. outreach workers shall maintain complete records of their contacts with and the services they perform in ac- cordance with a format developed by EPA. These records shall include a daily log. a copy of which shall be sent to the local office manager and maintained on file for at least two years. These records shall include the number of contacts and names of con- tacts (where applicable}. the services provided whether a. complaint was received. whether an application was taken, and whether a referral was made). Outrth workers also shall maintain records of each possible vio- lation or complaint of which they have knowledge, and their actions in ascertaining the facts and referring the matters as provided herein. These records shall include a description of the circumstances and names of any employers who have refused outreach workers access to pursuant to . During months when outreach activities are conducted. each local of?ce manager shall file with the State MSFW Monitor Advocate a summary report of outreach efforts. These reports shall summarize information collected. pursuant to paragraph (ml of this section. The local office manager and/or other ap- propriate State office staff members shall assess the performance of out- reach workers by examining the over- all quality; and productivity of their work. including the services provided and the methods and tools used to offer services. Performance shall not be judged solely by the number of con- ?653.108 Outreach workers shall not engage in political. unionizntion or an- tiunionization activities during the performance of their duties. in) Outreach workers shall be pro- vided with, carry and display. upon re- quest. identification cards or other material identifying them as employ- ees of the State agency. (Approved by the Of?ce of Management and Budget under control number 1205? 0039) (P112114. No. 96-?511. 94 Stat. 2812 (44 USC. 3501 et sec.)) [45 FR 39459. June 10. 1980. as amended at 47 FR 1&5. Jan. 5. 1982] 653.108 State agency self-monitoring. State Administrators shall assure that their State agencies monitor their own compliance with .38 regulations in serving on an ongoing basis. The State Administrator shall have overall responsibility for State agency sel?monitoring. The State Administrator shall appoint a State MSFW Monitor Advo? cate. The State Admmistrator shall inform farmworlter organizations and other organizations with expertise concerning of the opening and encourage them to refer qualified applicants to apply through the State merit system prior to appointing 3. State MSFW Monitor Advocate. Among qualified candidates deter- mined through State merit system procedures. the State agencies shall seek persons (1) who are from MSFW backgrounds. or (2) who speak Span- ish or other languages of a. significant proportion of the State MSFW popu- lation. or (3) who are racially or ethnh cally similar to the in the State. or (4) who have substantial work experiencc in farmworlter activi- ties. rm The State MSFW Monitor Advo- levels of tasks, complexity and respon- sibility. The State MSFW Monitor Advo~ cates shall be assigned staff necessary to fulfill effectively all of his/her duties as set forth in this subpart. The number of staff positions shall be de- termined by reference to: (1) The number of We in the State. as measured at the time of the peak population (MSFW activ? ity). and (2) the need for monitoring activity in the State. The MSW Mon- itor Advocates shall devote full time to Monitor Advocate functions. except that the USES Administrator may re- allocate positions from States of low MSFW activity to States of higher MSW activity and may approve a plan for less than full?time work in States of low MSFW activity. Any such plan must demonstrate that the State MSFW Monitor Advocate func- tion can be effectively performed with part-time staffing. All State MSFW Monitor Advo~ cates and Assistant MSFW Monitor Advocates shall attend within the first three months of their tenure a train- ing session conducted by the Regional MSFW Monitor Advocate. They shall also attend whatever additional train- ing sessions are required by the Re- gional or National MSFW Monitor Ad- vacate. The State MSFW Monitor Advo? cate shall provide any relevant docu- mentation requested from the State agency by the Regional MSFW Moni- tor Advocate. The State MSW Monitor Advo- cate shall: Conduct an ongoing review of the delivery of services and protections af- forded by JS regulations to MSWS by the State agency and local offices. The State MSFW Monitor Advocate. with- out delay. shall advise the State agency and local offices of prob lems. deficiencies. or improper prac- tices in the delivery of services and protections afforded by these regula- tions (including progress made in achieving affirmative action goals and timetables). and (ii) means to improve such delivery. (2) Participate in onsite local office MSFW formal monitoring reviews on a regular basis. 29 CFR Ch. (4-1?88 Edition) Assure that all significant MSFW local offices not reviewed onsite by Federal staff. are reviewed at least once a year by State staff, and that. if necessary. those local offices in which significant problems are revealed by required reports. management infor- mation. the JS complaint system or otherwise are reviewed as soon as pos~ sible. (4) Assure that the monitoring review format. developed by ETA. is used as a guideline in the conduct of local office MSW onsite formal moni- toring reviews. This format will ensure that applications and the application- taking process are reviewed during State onsite reviews by State MSW Monitor Advocates and/or review staff. who shall check; overall accuracy and quality, and offer technical advice on corrections or improvements. (5) Review the State agency?s out- reach plan, and on a random basis. the outreach workers? daily logs and other reports including those showing or re- flecting the workers? activities. to ensure that they comply with the out- reach plan. . Formal onsite MSFW monitoring reviews of local offices shall be com ducted using the following procedures: (1) Before beginning such a review, the State MSFW Monitor Advocate and/ or review staff shall study: Program performance data, (ii) Reports of previous reviews. Corrective action plans devel- oped as a result of previous reviews. (iv) Complaint logs. and Complaints elevated from the office or concerning the office. (2) Upon completion of a local office onsite formal monitoring review, the State MSFW Monitor Advocate shall hold one or more .?wrap-up sessions with the local office manager and staff to discuss any obvious findings and offer initial recommendations and ap? propriate technical assistance. (3) After each review the State MSFW Monitor Advocate shall con- duct an lndepth analysis of the review data. The conclusions and recommen~ dations of the State Monitor Advocate shall be put in writing, shall he sent to the State Administrator. to the offical of the State agency with line authority over the local office, a 228 Employment ond Training A and other appropriate State ficials. (4) The state Mo: cate may recommend that responsibility set forth in: tion be delegated to a respc fessional member of the 4 tive staffvof the State age: when the State Administs such delegation necessary event, the State MSFW Mo: cate shall be responsible to approve the written repc review. (5) The local office mar develop and propose a writ tive action plan. The plan 5 proved. or appropriately appropriate superior officiz State Monitor Adv plan shall include actions correct or to take major Si rect any problems within 3! the plan allows for more tr. for full compliance. the ion the reasons for. the exten shall be specifically stated. (6) State agencies. throu pervisory staff. shall be res; assuring and documenting local office is in compliance time period designated in State agencies shall submit propriate ETA regional Oil of the onslte local office in toring review reports and action plans for signifies: fices. The State MSFW Mo: cate shall participate in views conducted pursuant At the discretion of th ministrator, the State Advocate may be assigned sibillty as the complaint The State Monica shall participate in and r: performance of the compla as set forth at 20 CFR 658 The State MSFW Monito shall review the local office informal resolution of con: lating to and at that the State agency trans of the logs of cor the regional office quarter}: (is) The State MSFW Mo. cate also shall serve as an ROBERT J. WILLIS Attorney at Law 1306 Hillsborough Street Raleigh, North Carolina 27605 919 884-2003 February 1, 1990 Alfreda Williamson Staff Attorney Employment Security Commission of North Carolina P.O. Box 25903 Raleigh, North Carolina 27611 Re: Craig Stan Bury. Jr.. et al. v. Employment Securitv Commission of North Carolina, Civil Action No. 89w840?CIV-5rao (E.D.N.C.), Plaintiff's First Interrogatories and First Request for Production of Documents to Employment Security Commission of North Carolina (ESCNC) Dear Ms. Williamson: This letter is written to confirm our telephone and in person conversations on February 1, 1990 concerning the aboveereferenced discovery requests to the ESCNC and my letter to you dated January 29, 1990. Based upon those February 1 conversations, it is my "selfwservice" copying at 2.5 cents per page through self-service copying by that ESCNC employee whom the ESCNC designates to do that copying. It was my understanding that this method of copying the documents involved was agreed to by the parties as a compromise between the plaintiffs' written request under Rule 34, Fed.?.Civ.P., for temporary custody of those documents to allow the plaintiffs' to locate the cheapest method of obtaining copies of those documents and the ESCNC's desire to maintain the integrity of its records. With respect to the first document request referenced.above, as you know, the ESCNC failed to produce at our February 1, 1990 meeting in your office a single document that was responsive to those documents requested in paragraphs 4, 5, 6, and 12 when the ESCNC, by regulation, is obligated to maintain the type of records requested in those paragraphs of the request. In addition, at that same meeting, the ESCNC engaged in the following actions: 1. Produced payroll records for the two named plaintiffs that reflected only about six weeks of work during the time period 1 covered in this litigation in which the plaintiffs were employed continuously by the ESCNC for almost three years. See paragraphs 1, 2, and 9 of the aboveureferenced document request; 2. Produced documents the earliest of which was dated October, 1983 when paragraph 7 of the above-referenced document request called for documents dating back to 1965; 3. Produced documents dated before 1986 in response to the document request set forth in paragraph 3 and the accompanying interrogatory called for documents that were in effect and developed in; the ESCNC after 1986. See, the 1984 ESCNC Migrant Housing Inspection Policy document that was produced.by you on February 1, 1990 where the ESCNC has published annual migrant housing inspection policies on and after 1986. Based upon our conversations about the problems listed in the immediately preceding paragraph that we discussed on February 1, 1990, it was my understanding that you agreed to confer with Mr. Whitaker and advise me on or before February 9, 1990 about the possibility of ESCNC's voluntarily agreeing to correct those problems on or before the end of February, 1990. It was also my understanding from our in person discussion on February 1, 1990 of my January 29, 1990 letter to you about the above-referenced interrogatories that you had again agreed to confer with Mr. Whitaker and advise me on or before February 9, 1990 about the possibility of voluntarily agreeing to correct each of the problems with ESCNC's interrogatory answers set forth in my letter to you dated January 29, 1990 by the end of February, 1990. If, through some inadvertent misunderstanding, the contents of this letter do not accurately reflect the events and substance of the conversations that transpired between us on February 1, 1990, please advise me in writing with a correction as soon as possible. With respect to those documents which were actually produced.by the ESCNC on February 1, 1990, I would hope to receive them in my offipe with the bill for their copying by Friday, February 16, 1990; If, for some reason, that is not possible, please advise me as to the date by which I can expect to receive those copies. I look, forward. to receiving ?word. front you. as to 'the ESCNC's position with respect to the discovery problems set forth above. Sincerely, 1 My" Arr/Z, Robert J. illis Attorney at Law JONES AND AVERY BOX 28270 RALEIGH. CAROLINA 2761 1 2969 NEW BERN AVENUE MAOLAJONES ALL-EN DAVERY RAtsioH. NORTH CAROLINA 276:0 ROBERTJ.WJLL15 May 10 1990 c919) ass-0033 {939} 834~2003 Alfreda Williamson Staff Attorney Employment Security Commission of North Carolina P.O. BOX 25903 Raleigh, North Carolina 27611 Re: Craig Stan Eurv. Jr., et al. v. Employment Security Commission of North Carolina, Civil Action No. (E.D.N.C.), Plaintiff?s First Request for Production ?of Documents to Employment Security Commission of North Carolina (ESCNC) Dear Ms. Williamson: This letter is written to ask that your client, the Employment Security Commission of North Carolina produce and allow this office to inspect and copy the WPPR Performance Appraisal Summary and the for all ESCNC employees who were employed as Employment Interviewer I's, Employment Interviewer Employment Interviewer Rural Manpower Representative I's, and/or Rural Manpower Representative 11's in or in association with the Rockingham and Sanford, North Carolina offices of the ESCNC during the period from November 10, 1986 to the present. I recently discovered that the information contained in these documents indicates that they are directly included in the documents requested in paragraph.7 of the above-referenced document request to your client. As your client knows, these documents contain individual descriptions of the actual job functions and duties performed by each of the ESCNC employees who held any of the above listed job titles, including the named plaintiffs in this litigation, during the time period in question in this litigation. In the event that there is a problem with the confidentiality of these documents, I would be more than happy to agree to a stipulated protective order under Rule 26(c) that would prohibit this firm from using for any purpose not related to this litigation, and/or disclosing those documents to any person or Centity which this office does not reasonably need to disclose those documents in connection with this firm's advocacy on behalf of the plaintiffs in this litigation. I would appreciate it if these documents were provided to me well in advance of the presently scheduled June ll, 1990 deposition of the ESCNC. If, for some reason, the ESCNC has a problem with that, please advise me as soon as possible. i .a .kfwm Thank you for your cooperation in this matter. I look forward to reviewing the requested documents. Sincerely, Robert J. Willis Attorney at Law EMPLOYMENT SECURITY COMMISSEON OF NORTH CAROLINA LEGAL DEPARTMENT HAND DELIVERED June 8, 1990 Mr. Robert Willis Attorney at Law 2949 New Bern Avenue Raleigh, North Carolina 27610 RE: Eury/White v. Employment Security Commission 89-840-CIV-5-BO Dear Mr. Willis: I am responding to your letter of May 10, 1990, in which you requested that ESC provide you with for all ESC employees who were employed as Employment Interviewer Employment Interviewer Employment Interviewer Rural Manpower Representative I?s and/or Rural Manpower Representative in or in association with the Rockingham and Sanford offices of ESC during the period from November 10, 1986 to the present. I spoke with Mr. Whitaker about the request to determine whether he wanted to voluntarily release those records to you. Adthough you have offered to agree to a stipulated protective order we believe that because the records are confidential we would prefer that a court order is issued for the release. I attach the Employment Security Commission response to your May 8, 1980, request for admissions. As for other requested documents I herein list those that are attached: 1. Names, address and phone numbers for all employees in the Rockingham Office of the Employment Security Commission. 2. Names and addresses for all employees in the Sanford Office of the Employment Security Commission. a: aw . POST OFFICE BOX 25903, RALEIGH, NORTH CAROLINA 27611 733-4636 Mr. Robert Willis June 8, 1990 Page Two of Two 3. A copy of the MSFW Monitoring Review, Sanford Office of the Employment Security Commission, dated October 15, 1987. 4. A copy of Administrative Bulletin No. 15, titled Agency Classification Study, dated November 3, 1976. 5. A copy of a document titled Classification Pay Actions from the State Personnel Commission meeting of December, 1976, dated for an effective date of January 1, 1977. With regards, I am, Sincerely, Attachment(s): 4 JONES AND AVERY PO. BOX 28270 RALEIGH. NORTH CAROLINA 2761 I 2949 NEW BERN AVENUE . WAKE VIEW OFFICE CONDOS 1063 D. RALEIGH. NORTH CAROLINA 27610 ROBERT J. June 1 2 0 (919) 355-0033 (919) 834-2003 Alfreda Williamson Staff Attorney Employment Security Commission of North Carolina P.O. BOX 25903 9 Raleigh, North Carolina 27611 Re: Craig Stan Eurv, Jr., et al. v. Employment Security Commission of North Carolina, Civil Action.No. (E.D.N.C.) Dear Ms. Williamson: This letter is to confirm our telephone conversation on June 12, 1990 concerning the abovewreferenced case and paragraph 7 of the Plaintiff's First Request for Production of Documents to Employment Security Commission of North Carolina in that case. On that date, you again advised me by telephone that it was the ESCNC's position to refuse to allow the plaintiffs in this case the opportunity to inepect and copy the WPPR documents referred to in my letter to you dated May 10, 1990 pursuant to paragraph 7 of the document request referred to above based upon the alleged privilege created by N.C.Gen.Stat. Section 126?24. You also advised me for the first time that the ESCNC would not stipulate to the court's entry of a protective order under Rule 26(c) (as suggested in my letter to you dated May 10, 1990), but would insist upon the plaintiff's filing of a motion to compel production of those documents under Rule 37. As yen knowT from previous communications with me, it is the position of the plaintiffs that the ESCNC has waived any privilege it may have under Section 126~24 through its failure to claim that privilege with respect to paragraph 7 of the plaintiff?s document request in a timely fashion. See Howard v. Malcolm, 27 W.H. Cases 1113, 1117 (E.D.N.C. 1986), and cases cited therein. In addition, you have also been advised that it is the position of the plaintiffs that well?established caselaw from this district indicates that the ESCNC has no discovery? privilege for the documents involved, and that the documents sought are clearly within the scope of discovery in this case. Spell v. McDaniel, 591 F.Supp. 1090, 1114, 1116, 1119 (E.D.N.C. 1984), and cases cited therein. Based upon the position of ESCNC with respect to this matter, the plaintiffs have no choice but to file a motion to compel under Rules 37(a)(2) and Fed.R.Civ.P. If, through some inadvertent.misunderstanding, the contents of this letter do not accurately reflect those portions of our telephone conversation on June 12, 1990 that they purport to reflect, please advise me immediately with a specific correction. Sincerely, Robert J. Willis Attorney at Law Employee Name Job Title Number Unit Name Number Number Craig S. Eury WPPR Performace Appraisal Summary RMRI 41514 Sanford 7900 (919 775*224l For Jilly l! to P0 18 (Rev. 12/88: June 30, 1989 7 Date Interim Evaluarior; Completed 5? List All Perfcmance Expectations In Order of Relative Importance PERFORMANCE EXPECTATIONS INTERIM PERFORMANCE INTERIM COMMENTS OVERALL PERFORMANCE OVERALL COMMENTS RATING A statement on what corasritmes performance. This statement A statement of an employee's to These canmems may be used to A 5mmQO of the employcg?s mm; for Th?: mam; may be used to address Exceeds, Meets or should include a brief descripmn of the 135k being perfumed or the critical this point - not a rating of such performance. This address enema! factors (barriers or the work period as a who}: - not a rating of such per- :?'cxzemal factors (barriers or facilitators) Doe-s Not Meet acrivity an which the performance expectation is based. column should show a direct relationship with the facilitators) affecting outcomes or Lhey formance, This column should show a direct mlaum? affecting wmes or they may be used Expectations. perfonraance expectations listed in column one. The may be used as a developmental tool, ship ?rim [he perfmancc upcaauons ?ned in column as a develcgmenml tocl, summarizing use of words such as "done. as requested" 0: "meets summarizing the employee's Stren one. The use of words such as "done as requested" or the employee's and areas that standards" art not accept-31316 Sincc they do n0l i? MESS that 118% "meets standards" are not acceptable since they do not tread improvement. summarize actual performance. summarize actual performanceReglster accordmg to procedure 34?) 0 all famners needing service in - A if . 9 area of 45) 4 Mw 5" ?17paladin W- 2. I I . war/757,2 V151: farmers 111 area to determme '2 worker needs (457 5? 3/ AP ?x?fc (.534 4 3. Register all available farmworkers, migrants and seasonal workers f} available in the area (150 registrations) 4. e: A yet/? Refer and place according co procedure all applicants for 57 5/ farm work (minimum of 1000 a? transactions) 2 Mij? . -A 5. f, (my; 4W Prepare all reports in a timely manner M15 be 1 I xii/24 :7 27% JM m! PERFORMANCE EXPECTATIONS A statement on what constitutes satisfactory performance. This statement should include a brief description of the task being: pedomaed or the critical activity on which the performance cxpecmtion is based. INTERN PERFORMANCE A statement of the employee's actual wriggling; to Lhis point - not a rating of such performance This column should show a direct relationship with the pezfomtance expectations listed in column one. The use of words such as "dune as requested" or "meets Standards" are not acceptable since they do not summarize actual perfumtartce. INTEREM COMMENTS These comments may be used to address external factors (barriers or facilitators) affeCting outcomes or they may be used as a developmental tool, summarizing the employee?s and areas that need imprmement. A statement of the employee?s actugl for the work period as a whole - not a rating of such per- formance. This column should show a direct relation- ship with the performance expectations listed in column ias a developmental tool. summarizing the one. The use of wards such as "done as requested" or "meets standards" are not acceptable since they do not summarize actual perfonnanCe. RATING Esceeds, Meets or limes Not Meet Expecwticms. OVERALL COMMENTS These comments may be used to address textemal facmrs (barriers or facilitators) taffecu'ng outcomes or they may be used OVERALL PERFORMANCE temployce's and areas that need iimprovemcnt . . Meet all 1ndlcaLor$ of com ltance 4v a 7 . .1 ?43! law each quarter q? ?u - ?has 7- ewe/Z {22% Assure that all act1v1ty ls properly input: in the computer 5,74%? I ex: 8. (Must be based Upon Prcviously Mmmce um?ms.) This is an Overall narrative summary of performance. It must be specific and relate to actual performance and 119: habits or attitudes. Wm Supervisor completes this section. List 77711.. Mastic- . f) ?McMi-Ld?ab w?Jz/M? c3247 (optional - reqtitred if overall performance does not meet expectations) (MM W- .W ElExceeds Meets Does N?ot Meet 4, In! A I I l; positive steps discussed to help the err? pluyec improve hisfher perfonnance. glam: (?augments Employee may prepare a separate writ~ (opti?nal) ten statement and attach it to the Per? formance Appraisal Summary if desired. Employees-"Signature; Without Stating whether or not I agree with this Appraisal - that my sugeysor has discussed it With me anti ow HS 5., 1/ . First Level Supervisor: I have discussec the employee?s actual with him?tcr and compared it with previously communicated pcrionnance expectations. I have performance based 11 these performance expectations. Second Level Supervisor: I have reviewed this apsxaisal for consistency With Other appraisals made by this supervisor and other supervisors reporting to me. Hi do not agree with the immediate supervisor's appraisal, have atta ed a state to this Appraisal Summary indicating this disagreement and my appraisal of the em? ploycc?at ?if13m. f" 5? Su?crvix?': Seawall Second, pm :e :ngloyee i Tanager*e Initials egional Manager's Initials .. EDHE 1a Dates r. wertormece Appraise! Summary =~f88 Employee Name WHITE, W. Job'?de Rural Manpower Representative I Fofpg?gd 7-1-88 :0 6i30-3o 39864 Unii Name a; Number Rockincnem ?500 Date Interim Evaluation Compictcd 6K - do, 377 Te?cnonc??nn?er 9l% 895?4086 List AH Pedomance Expectations In Order of Relative importance Penman-Irma EXPECTATIONS INTERIM PERFORMANCE INTERIM com-n:sz OVERALL PERFORMANCE OVERALL COMMENTS RATING A smemml on what consumes satisfactory pcn'onmnce. This summl A 5mm: of Lb: employee?s actual so Went: may be used Lo A the mpioycc?s actgg we, rigrmanc: for. Tans: comments may be used no Exceeds, Meets or shm?d-mc?uoc a. dos-cnpuon of 131: L353: bung pcn?onncd or the critical this pom! - no: 1 mung of sud: can'mznca. This address enema} faster: (earners or m: won; Period ,5 a who}: . nm a mung of such Per. elm-ml fag-w? {mmc? m- fm?mw?} a Doc; No; Me? 0? ?"355 mnommcs ?Rm-mo" 15 0mm coiumn should show a dime: mianonsmp we): 1m: facilitators) outcomcs or they fomznce. This coiumn should show a direct random affecting outcomes or may be used Expectations. - pcn'omancc expecunons kissed in coiumn one. Tn: may be used as a dcvciopmcmai 1003. Ship mm m: cxpcuauons aged in comma as angiopmcnul toe-L. summanzmg use of words med: :5 "done as requested" or "menu summarizing the umpmyec} one. Tn: use of words such as "done as requested" orj employee's Stung-rt: and mas that standards" are no: acceptabi: since :y do no: and areas that ass: Hummers:an "macs madam; am am amubgc smc: may do mm mm: ?prawn,an summarize zcmai performance. . sun-?cum: aanai ocn'on'nancc. l. Assists Manager in planning PCP, setting Activities progress within icinated in goal settihq goals priorities. Fran willrbe eccept~ plen. keening?Mgr . ted on inci?asinq able to RMR II and include recruiting Gees, Of'th? local and? rewleaders, employer visits, etc. labor info tion . Exce 3- Wi%l i?teerQW appll?ant5r Utilizes job matching as well Stays current on all openings maintaining knOWledge Of 30b Openingg and as screening crews for local in addition to agriculture, . r: - . ?h metCh Wile Ofier all 55 ser' needs. Posting is accurate. Makes applicants aware of all utilize. JIS. Records Will be services_ Utilizes comautef for posted timely and procedurally. accurate innut. - Exceeds 3. Will schedule a icultural tree lantin gr,. 1 . a . Empi9yer Leg?stra?lon *Cr MEets E.v. goals and prOVlfaS employer Vieits. Will register a firsz 6 mos. of py are accep- services tn include accurata of 100 emplovere on NCSES 334. Will nuttne table 1 . crearan . stat; informed clearance orders at are procedurelly Ce Id :3 A ~l tn correcr. of eerancc orders Meets 4. Will outreach offering all ES eer- Outreach of MSEw'ig on Call?in progranl Provided outreach servicestow vices, encouraging use of L.O. Outreach target, will begin next 6 provrding all local activities documented timely mos, of p/y, .rrice servrcee and posting A yearly call~in program will be carried tinely records. Utilized cell- Exceeds out to assure service to ins With emphasre on counee.ing - rumch 5. Will couplete required_reports timely Indicators of Compliance Remorts at staff meetings and procedurelly. Will inform staff of "are acceptable. Has kept on?lndicators Of and compliance of Indicators of Coupliance staff posted. Meets Eran DOL propose corrective action. files required reports tinEl PERFORMANCE EXPECTATIONS A on what sausfacmry performance. This Slamman should include a brief of the task being performed or the critical activity on which the performance exp-common is based. INTERIM A statement of the employee?s actual Egrformancc to this perm - not a mung of such performance. This column should show a dime: rclau'ons'rzxp the performance expectations listed in column 0:25. To: use of words such as "done as requested" or INTERIM COMMENTS Thar: comments may be used 10 address external facaors (mmch or may be uscd as a develoorncmal tool. summarizing the employee?s Sirenng and areas ma: need improveman lacu?ilaxors?) outcomes or they RATING Exceeds, Meets or Does Not Met: OVERALL COMMENTS ancs: commcm: may he uscu HCUESS OVERALL PERFORMANCE A of me employee's sexual gm?on?cncc for Lha work period as a whole nu a ?lling of such pcr? {actors seamen or l?aciizzarom formancc. 'l?nls column should show a direct relanon- mrcornes or duty may Dc used ship wim the performance cxpcaanns lined in column 1as a tool. summarizing me . one. Tn: use: of words such as "done as requested" or employees 5111-21ng and areas that need "meets standards" an: not acceptable since they do no: improvement. standards" are not acceptable since they do nor summarize actual performance. summarize astan pcrionnancc Periodically review staff knowledge of MSFW procedures and regulations, and correct weaknesses by training staff. This includes Wadesboro Branch. Used staff meeting to review policies relating to MSFW. Provided technical training to two new Interviewer I's on MSFW procedures and regulations prior to transfer to'W'Boro Branch. Meets During off season will participate in local office activities such as intake, reception, answering phone, selection, referral, etc. as needs arise. Shared local office work load in off season to in? clude reception, telephone, job orders. Is a team player. Participated in intake, reception, answering phone and placenex related activities showing 5 port for all programs and ac vities in addition to ooera? 1t sup? :ti- zinc Exceeds OVER ALL QUM MARY 0p (Must be based upon previously communicated performance rs a Exceeds steers an excellent Agri. Program. [3 Does Not Meet Tins is an overall narrative summary of performance. It mus: be specific and relate to actual performance and got habits or attitudes. Emnlmee Improvement Plan Supervisor completes this section. (optional - required if overall performance does not meet expectations) positive steps discussed to help L?ne cm- ployce improve his/her performance. fruwurc?emreso Empioyce may prepare a separate wru- (optional) zen swtemcm and attach l: :0 Perv fomancc Appraisal Sumner: if desired. Employee's Signature: Without stating whether or not I agm with this 3? Apmzsal Summary, I certify :13: my has discussed it with First Level Supervisor: I have discussed the cmploycc's actual pcn'onnanc: with and compared it with communicated performance have appraised performance based upon these pct-femancc expectations. 734322; . LfaX? so; mc anu2-35% i or. .. kw" Second Level Supervisor: ibave reviewed this appraisal for consistency with ozhcr appmsals made by this - supervisor and omcr supervisors rcponmg to me. If do not agree with m: unmcdiatc supervisor's appraisal, have auachcd a Statement :0 this Appraisal Sm?mary indicadng Lhis disagreement and my appraisal of pioycc. .. '5 5 8?55" ham? I r- .4 lm'u 1? 41' A nua- a i. I I '7 113:: 5: Level. um imam: Duecunt; .I .p?GCz-Cin y/ '7 3 r? if?nAv/J?I 1.17M B, a" 1 l-mr-mwe'; :..Lm4:er4.. Du: immr?nw Sumnm?i 5mmch - mug: (ml-:53 STAN individually; on behalf; of y? sit?a?ed- ?3 emplayee?? .. securi Camss'ria-Ix cz? INTERROGATORIES Int. N9. l: Please identify each employee of the Defendants who was employed as a Rural Manpower Representative I I), Rural Manpower Representative II II), and/or "Employment Interviewer" for each office of the Defendants in which an RMR I employee was and/or is employed by the Defendants during the time relevant to this g? lawsuit. Answer No. 1: Attached is a computer printout identifying each.employee of the Defendants who was employed as a Rural Manpower Representative I and Rural Manpower Representative II for each office of the Defendants in which a RMR I employee was and/or is employed by the Defendants during the relevant time. The Defendants have not pr??ided a list of those employees titled Employment Interviewers as the named Plaintiffs were not a member of that particular class during the?time relevant to this lawsuit. 1.x. . . 1.. (Tin ?(3.1 i. .. An?? m. E. m. In. ML .4. 2.I?m] - ..-L.. .a ?1 9-. ?ua :w.hg. - uJ. 2 3: ?38Midi ...IJ mm .I?Represantativea: Employment, Segutity; ?rain ?n m, Fawn "a Mi a arm?Wi? - ??ammw??wa Am, 3? Mug: 5? wm-?kys, Eingw EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA LEGAL DEPARTMENT April 12, 1990 Mr. Robert Willis Attorney at Law 2949 New Bern Ave. Raleigh, NC Re: Bury/White v. ESC 89?840?Cvasweo Dear Mr. Willis: Attached you will find.Amendments to Interrogatories that I will continue to amend as necessary. Additionally, you will find topies of some documentation regarding the handling of the classification of Finally, you will find copies of time records for your clients detailing their time worked and time taken ago: the relevant period. 13? I will continue to either gather documents or apprise you of their whereabouts so that you may examine them. With regards, I am, (:?ZZ?erely? 1? 9 Al eda William?on ff Attorney Attachments POST OFFICE 80X 25903. RALEIGH, NORTH CAROIJNA (9197 733-4?36 Int. No. 4: For the time relevant to this lawsuit with respect to each employee of the Defendants identified in the answer of the Defendants to Interrogatory No. 1 above, please separately provide for each such employee a specific description of each job function and/or duty that formed the "primary duty" of that employee during each pay period during the time relevant to this lawsuit. Answer No. 4: Generally, RMR I's and RMR 11?s are or were engaged in specialized employment service work in the recruitment and placement of farm labor. Employees are responsible for determining farm labor needs and availability in a specific area or county and for formulating plans to secure workers to meet these needs. Work includes registering all principle employers, recording crop acreage and anticipated labor requirements, taking orders for all agricultural worg, referring workers to growers, and recruiting workers from outside areas to meet labor needs. Employees are expected to use initiative and to make decisions independently since a majority of their duties are performed alone and outside the office. Attached is a job description for Rural Manpower Representative I and Rural Manpower Representative II which details the type of work in which these employees were or are engaged. Amendment to Answer No. 4: The "primary duty" of Rural Manpower Representatives I?s is to provide employment services to agricultural employers by regularly visiting and registering said employers, soliciting orders, recruiting workers, registering applicants, and making job referrals within the individual?s geographic area of responsibility. Employees are expected to use initiative and to make decisions independently regarding how best to meet the employment needs of employers and employees. Employees are also expected to use initiative and make decisions independently since a majority of their duties are performed alone and outside the office. The "primary duty" of Rural Manpower Representative 11?s is to have a thorough knowledge of ESC procedures, Federal and State regulations, the Migrant Seasonal Farmworker Protection Act and provide interpretation of the same and technical assistance such as training and coordination between RMR I?s, local office managers, and theyRural Manpower Supervisor, in order to carry out all phases of the Rural Manpower program. The RMR Il?s are responsible for coordination and assisting in a 19 county area. The "primary duty" of the Employer Interviewer I is to provide employment services to nonagricultural and nonagricultural related employers by registering said employers, soliciting orders, recruiting workers, registering applicants and making job referrals within the individual?s geographic area of responsibility, or as they materialize in the office setting. Weig'ww The "primary duty" of Employment Interviewer 11?s is to serve as assistant office managers in cffices that are of medium size, or Unit Supervisors, or program specialists such as JTPA Program Specialist or Older Worker program specialists in offices located in larger metropolitan areas. The "primary duty" of Employment Interviewer and are to serve as Assistant Office managers, thereby supervising and assisting the manager with the full range of on going day to day office activities. a. Int. No. 5: For the time relevant to this lawsuit with respect to each job function and/or duty identified for each employee in the answer of the Defendants to Interrogatory No. 4 above, please generally describe and identify any equipment and/or form(s) used by that employee to perform each such function and/or duty so identified. Answer No. 5: Attached is a list that briefly lists equipment and/or form(s) used by the employee to perform their job functions. The named Plaintiffs have within their personal knowledge a description of the use of listed forms for RMR I?s. Int. No. 14: Please identify each person who has any personal knowledge of any factual matter that is relevant to any factual allegation made by the Plaintiffs in the Complaint in this action, and, for each such person, specify the substance and particular factual allegation for which that person has personal knowledge of. Answer No. 14: Robert L. Mooneyham, Manager, SanfordgLocal Office. Mr. Mooneyham was the direct supervisor of Mr. Eury and would have personal and direct knowledge and/or records regarding his working relationship with the Plaintiffs and the way in which time was handled. Ms. Betty A. Dorsett, Manager, Rockingham Local Office. Ms. Dorsett was the direct supervisor of Mr. Kenneth White, and would have direct and personal knowledge and/or records regarding the actual working relationship of Mr. White with the Defendants She would also have direct knowledge of how time was used by the Plaintiff. This the 12th day of April, 1990 fespectfully/s' mitted, Ma - l, .7 ?1x. (Alf eda Williamson" St ff Attorney Employment Security Commission 700 Wade Avenue Raleigh, NC 27611 EVE 0%56 6F STATE 0) Emu tam as 0F 02/19/90 TE 4503~1350?0921~135 ?Lb 21136 P03 TITLE coDE a sunGET canE 24650 PBS TYPE. EMET POSITION TITLE BUBHEAD 13501210~0030~00?0a00 Tn, PBS 63 Ed? . 7E CGUNTY runn SOURCE FEDERAL $19152 Pas RANGE 2 $18240 ?23764 APPT EFFECTIVE w? I EMPLUYEE NAME TYPE BATE TYPE NUMEER SALARY GRADE STEP 38/01/88 NEH POSITION 63x END OF HISTORY i if I my .1: A mix? BUDGETEB LEVEL OF POSITION KEN/tit PAGE 1 Tu EMPLOYMENT INTERVIEHER I NAKE TiTig 1 '11" 1_?7i1 07,11,11 OFFICE OF STATE PERSONNEL Econ 00000 090/000 POSITION HISTORIES PAGE 504 5 AS OF 02/19/90 ISITION 0 0603~5000~0039m762 010 P03 30702 000E a 0100i IDGET CODE 0 20650 _f 005 TYPE 0 EMFT POSITION TITLE I IBHEAD 75001210-0030-00~0000 . Ros GRADE 0 6311", COUNTY RICHMOND 3ND SOURCE FEDERAL 7 B-SAL $20866 3 P03 RANGE 2 010240 028704 I APPT EFFECTIVE A [77111 7011 L, 1 EMPLOYEE NAME TYPE DATE TYPE 00517100 NUMBER GRADE STEP PosiTioN TITLE PMFT 07/01/05 LEG 017070 03 20 i 7T, PMFT 00/01/05 MERIT INCR . . $17052 63 30 INTERVIEHER 1 PMFT 07/01/07 LEG INCREASE $10540 63 30 EMPLOYMENT INTERVIENER 1 PMFT 07/01/30 LEG INCREASE $19300 53 50 EMPL07MENT INTERVIEHER 1 PMFT 07/01/39 LE0 INCREASE $20160 03 :0 EMPLOYMENT INTERVIEHER I PMFT 01/01/00 MERIT INCR $20866 0; EMPLOYMENT INTERVIEWER I ENE 0F HISTORY 1 Jib .r as BUDGETED LEVEL OF POSITION . - 00,03;ww_ UFFICE OF STATE PERSONNEL i PAGE 573 05 0F 02/19/90 Lg . 0603-3000?0041v370 0L0 E03 @1376 FoszirLE 000E a 01?02 Lita LUDGET CODE 24050 I 1 P05 TYPE, POSITION TITLE EMPLOYMENT INTERVIEHER 1 LUBHEAD Pas GRADE 65 COUNTY LEE ruun SOURCE FEDERAL 2 023330 0 P03 RANGE 010240 $23704 APPT EFFECTIVE ACTION 0 4.0, EMPLOYEE NAME TYPE DATE TYPE POSITIGN NUMBER SALARY GRADE STEP P031T30N TITLE JACQUELIN M. PMFT 07/01/36 LEG INCREASE $20166 53. 6% EMPLOYMENT i PMFT 08/01/86 MERIT INCH $20923 65 7A EMPLOYMENT INTERVIEWER I PMFT 07/01/87 LEG-INCREASE . $21972 65 7A EMPLOYMENT INTERVIEHER 1 PMFT 07/01/88 LEG INCREASE . $22956 63 7A EMPLOYMENT INTERVIEWER 1 PMFT 07/01/39 LEG INCREASE $23880 63 7A EMPLOYMENT INTERVIENER 1 i END BF HISTORY A . . 3 BUDGETED LEVEL OF POSITION FILED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA ELIZABETH CITY DIVISION WY 11984 No. u. memo"? DIST). no. can PETE PHILLIPS, et a1, Plaintiff v- MELVIN BRIGHT, d/b/a BRIGHT BROTHERS, et al., Defendants a? This matter came on for hearing on April 25, 1984, in Elizabeth City on plaintiffs? Motion to Compel ?roduction of Documents from.the defendant Employment Security Commission of North Carolina (ESCNC). Counsel present for the plaintiffs were? Robert J. Willis and Billy R. Ellerbee. Counsel present for ESCNC i{pare Jane E. Dittman and V. Henry Gransee, Jr. This is a Section 1983 action concerning compliance of migrant ?farm worker housing with state and federal regulations. As part of She lawsuit, the plaintiffs alleged that ESCNC failed to execute its affirmative duty to properly inspect the farm labor housing owned by?the defendant Melvin W. Bright to ensure its compliance with federal housing standards for migrant labor. 20 C.F.R. 654.400, 23. Egg. ESCNC provides an employment service system in North Carolina available to the employers of migrant farm laborers. In doing so, the ESCNC makes pre?occupancy inspections and iSsues clearance orders in respect to housing facilities provided for the migrant laborers. In order to prevail against ESCNC in a Section 1983 action, the plaintiffs must establish "custom or practice.? A0 72A ?53 (Rev. 8182? A0 72A (Rev. 8/82! See Monell v. New York City Department of Social Services. 436 U.S. 658 (1978). The documents sought in discovery may be pertinent to this issue and, accordingly, are subject to discovery unless protected by privilege. ESCNC does contend that the discovery requested is privileged by virtue of state and federal law. As to federal privilege, ESCNC recited the provisions of 20 C.F.R. 602.18. This section was rescinded on November 2, 1983. 48 Fed.Reg. 50,665. So, there.is no codified?federal privilege upon which the ESCNC can rely. However, the defendant also says that the directives of the federal regulation have been codified by the North Carolina ?General Assembly in G.S. 96?23 and Regulation 23: N.C.G.S. 96~23: All information obtained by the North Carolina State Employment Service Division from workers, employers. applicants, or other persons; or 3 groups of persons in the course of administering the State public employment service program shall be absolute privileged communications and shall not be disclosed directly or indirectly except as by regulations prescribed by the Commission. Regulation 23: 23.10 Information obtained by the North Carolina -State Employment Service Division from workers, employers, applicants, or other persons, or !groups of persons in the course of administering ?the State public employment service-program shall be disclosed only pursuant?to law. ESCNC asserts that the records requested by plaintiffs contain substantial information concerning hundreds of employers' and applicants who have utilized-the services of ESCNC in the belief that the information' they .provided would be confidential _and utilized only to assist them in securing employment for a qualified employee. ESCNC says that the confidentiality of the information A0 72A ?33 {Rem 8M2) obtained from employers is essential to the employers' participation in the employment service system. This court must first determine the application of state privilege to this action. Rule 501 of the Federal Rules of Evidence provides some guidance: Rule 501. General Rule Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme? Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may' be interpreted by the courts of the United States in" the light of reason and experience. However, in civil actions and proceedings with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State or political subdivision thereof shall be determined in accordance with State law. Since this is a Section 1983 action, this action is not one where state laW?provides the rule of decision. Nor does the court ?have available any federal statutory authority concerning the psivilege asserted herein. Hence, the question of privilege is governed "by the principles of the common law as may be interpreted by the courts of the United Sates in light of reason and experience.? 15.; U. s. v. Gillock, 445 v.5. 360 (1980). "In determining what this is to be, the federal courts may consider state privilege law but are?not bound by it." 9hight, Law of Federal Courts, 4th Ed., 626-627. Thus, it is appropriate for'this court to consider the state_statute and regulation as it may relate to privilege. In doing so,athis court concludes that 8.5. 96-23 does create a privilege 'for? the information specified A0 72A (Rev. 8182) therein. Yet, Regulation 23 does provide that the information may be disclosed ?pursuant to law." This court further concludes that court?ordered disclosure in an action concerning compliance with the Wagner Peyser Act and its implementing regulations constitutes action "pursuant to law." Accordingly, plaintiffs are entitled to disclosure of the information sought. In ordering disclosure, however, the court must balance the plaintiffs' need for discovery with legitimate concern in preserving the confidentiality of the information within the ambit of G.S. 96-23. The information is sensitive, and concern in protecting the confidentiality of the information is legitimate. Plaintiffs' counsel, Mr. Willis, in response to inquiry by the court, stated that the sole purpose of seeking this information was for use in this action. Considering the aforesaid, this court feels that the needs of both parties can best be served by ordering ?the disclosure of any information within the ambit of G.S. 96-23 to be subject to the provisions of'a protective order prohibiting the uge of said information except in connection with this proceeding, unless otherwise subject to disclosure "pursuant to law." Rule 26(c) F.RaCiv.Pro. Each of the parties has also sought an award of expenses in connection with this motion. However, this court concludes that neither party is entitled to an award of expenses because the position of each was substantially justified. Now, therefore, in with the foregoing IT IS ORDERED that The defendant ESCNC on or before May 21, 1984, make available for plaintiffs' inspection or copying the documents requested by Request for Production Nosfor the time period from January 1, 1983, to present, and by Request Nos. .3, 5, 6 and 9 for the time period from January 1, 1980, to the present, subject, however, to the following protective order: IT IS ORDERED that all information subject to disclosure herein which was obtained by the North Carolina State Employment Service Ibivision from workers, employer, applicants, or other persons, or groups of persons in the course of administering the State public employment service program shall only be disclosed to plaintiffs and their counsel, and counsel?s staff for use in this proceeding, and these persons shall be prohibited from using said information for any. other' purpose unless otherwise subject to disclosure "pursuant to law," as provided by Regulation 23. (2) The Motions for AttOrney Fees and Expenses of both pfrties in connection with the Motion to Compel are DENIED. SO ORDERED, this let day of May, 1984. i . my acme/?x K. Mcco?i?i'sa, as. United States Magistrate certify the foregoing to be a true and correct copy of the original. J. 'Rich Leonard, Cit?" United States District Court . Eastern District of North carolina Deputy 019m 8 A0 72A 8 (Rev. 8182? BLUEFIELD He. the com- migrated any his provision. the Fair La:- l.C. promulgated able employ? .ection in the RR. $25543: 5 Employ- an 3 Labor Law (OCH) this proce- .s the present having the ant approved benefit is the ind expensive where all too sufficient rec- of International ers v. City of Us City of . 984, .Her cur? the circuit 19 Governor?s emoranda of wees did not under W. Va. fore. holidajlr 3e paid under and W. Va. days. The cir~ act in ?nding worked on it sets and ?re? Va. Code. 21- emed to have vio? lug may employee mnximum work? love? under such um'nemem. or un- w-n the mnplover 'iormance of the employee for the im in such work? :1 work week appli? subsection: loss than one mid lhilshed by such 5 lhe rate to me compensation lw mm so In; equivalent 5' of the employee. '15. in the partial? period of rlme: hourly earnings of "'ments de- mef if subsec- I?ll" houer and ll? mperlv computed uiditional pay ro- mlimz ?lw z-r'malnr HOWARD V. MALCOLM 27 WH Cases 1113 lighters were entitled to be compensat- ed at one and one?half times their reg- ular rate of pay. However. we find the circuit court erred regarding the pay? ment of holiday pay to firefighters who worked overtime. Where ?re? fighters worked overtime on it legal holiday. they were entitled to two times their regular rate of pay for th overtime hours worked. We also agree with the circuit court?s ?nding that the city had estab? lished an agreed pay schedule for lire- fighters that properly compensated them for overtime. However. we dis? agree with the circuit court's holding that any additionle overtime above the sixteen hours scheduled to be worked each week should be calculated at a. different regular rate of pay. The same regular rate of pity must be used in both circumstances. In view of the foregoing. we af?rm the Circuit Court of Mercer County?s rulings. in part. and reverse them. in part. and remand the case for further proceedings consistent with this opin- ion. Allirmed. in port. Reversed. in part. and Remanded. HOWARD v. MALCOLM US. District (Snort. Eastern District of North Carolina HOWARD. et v. MALCOLM. et at. doing business as BAYTREE PLANTATION. No. 85?123?Clvu3. January 31. 1986: Order February 1986: Order February 12. 1986 FAIR LABOR STANDARDS ACT 1. Migrant farmworkers violations Procedure r40.434 >80.001 Farm labor contractor who is deemed under Rule aldl. Federal Rules of Civil Procedure to have violated. among other things. wage and record- keeplng provisions of FLSA by his fail- ure to respond to migrant farm- workers? allegations is ordered pursuant to Federal Rule 34(b) to i1l~ low workers' representatives to enter. inspect. measure and videotape con? tractor's migrant labor camp. where contractor failed to respond to work? ers' motion to compel inspection. cons tractor made untimely ?intentions. no merit is in contention that i I a. ?1 workers made "overbroad and gener? al" objection in violation of Federal Rule 26. and workers motion is stilli- ciently specific in terms of time. place and manner of ii'ispection and entry as well as property to be inspected. ?x 2. Migrant PISA violations Discovery Relevancy--._ >80.001 ?40.434 Farm labor contractor who is deemed under Rule de). Federal Rules of Civil Procedure to have violated. among other things, wage and record- keeping prevismns of FLSA by his fail- ure to respond to migrant farm- workers' allegations. has hull-cl to show that workers' motion under Federal Rule 34m) to enter. inspect. measure and videotape contractor's migrant la~ bar camp not. relevant or) ground that inspection wanna my, a: con- ditions stated in workers complaint. since entry and inspectionere reason- ably calculated to lead to discovery of admissible evidence. Robert J. Willis. Farmworkers Legal Services of North Carolina. Raleigh. NC. for plaintiffs. Charles F. Blackburn. l-lemlerson. N.C.. and Robert F, Griffith. ll. New~ ton Grove. N.C.. for defendants. Full Tart of Opinion FOX. District Judge: 'l'hls matter is before the court on plamtill's? mo? tion. pursuant. to 18 USC. Mmml. for an order requiring defendant Frank Blanding to show causv why he should not be held in civil and criminal (ton? tempt of this court for his willful fail? ure to: obey a lawful sul'lpoena drives (is. cum issued by the court on Sep? tember 23. l985. and personally served on defendant Blending at his labor camp near Coats. North Carolina. in Harnett County on October 7. 1985: and obey the order of this court en- tered by United States District Judge W. Earl Br on February 3. 198] pcrmav' 'ltly enjoining and restrainlz-e defendant Blending from vi dating his legal obligations as at labor con? tractor under am ?aizable law. Defendant has failed to respond to plaintiffs? motion within the time pro~ vided by law. thus. the matter is now ripe for disposition. Plaintiffs. six migrant l?armworkers. initiated this action by complaint. ?led September 23. 2985, alleging mi- a gawk . ., .r 2'7 WH Cases Ill-4 V. MALCOLM morons violations of the Migrant and Seasonal Agricultural Worker Protec? tion Act 29 U.S.C. ?1801 et seq? the Fair Labor Standards Act (FLSA). 29 U.S.C. ?201 et seq. the Fed? eral Insurance Contributions Act (PICA). :36 U.S.C. et seq. and the Federal Unemployment Tax Act (FUTA). 26 U.S.C. ?3301 et seq. Plain? tilfs also seek class certi?cation on three of the claims relating to the overpayment of FICA and FUTA pay- roll taxes by defendant Blanding and the Malcolms. pursuant to 23th). Plaintiffs? complaint against defen? dant Blanding allges. inter alia. that the defendant intentionally violated plaintiffs AWPA rights in that he: failed to comply with the re? quirements of 29 U.S.C. 1821(d)(1) regarding pay records: failed to comply with the raw quirements of 29 U.S.C. regarding provision of itemized pay deduction state~ merits: failed to pay wages when due in violation of 2-9 U.S.C. ?182Zlal: failed to ascertain and disclose in writing to the named plaintiffs at the time that the named plain? titfs were recmited by him or his agents the information concern? ing the terms and conditions of their prospective employment with Blanding, Ken and Debra Malcolm in North Carolina rew- quired by 29 knowingly provided false or misu leading information to the named plaintiffs concerning the terms. conditions. or existence of agricultural employment and mi- grant agricultural housing with the defendants in violation of 29 U.S.C. {$18216}: if) failed. without justi?cation. to comply with a working arrange? ment with the named plaintiffs to pay FICA and FUTA taxes due on the wages owed to the named plaintiffs for the work they per- formed for defendants Blanding and/or Ken and Debra Malcolm: lg) failed to ensure that the housing used by defendant Blending to house the named plaintiffs in 1985 met the applicable state and federal substantive safety and health standards during the en- tire time lt was used to house those named plaintiffs in viola? tion of 29 U.S.C. ?1823(a): permitted the named plaintiffs to occupy the housing used by defendant Frank Blanding to house them in 1985 before defen? dant Bianding had obtained and (c (e p0sted a certi?cate indicating that the honsmg met applicable federal safety and health stall- dards set forth at 29 ORR. ?910.142 in violation of 29 03.0 me] its): and used the services of several em- ployees to perform farm 1:1th contracting activities with re- spect to the named plaintiffs when none of those individuals had a certi?cate of registration in violation of 29 U.S.C. ?18ll(b). See plaintiifs? complaint at para? graphs 31?38. in addition. under ELSA, plaintiffs have alleged that their right to pay"- ment of the minimum wage for the work they performed for defendant Blanding was violated. In paragraphs 33?35 of their complaint. plaintiffs claim that: During their period of employment by the defendants Ken and Debra Malcolm and Frank Blending. the named plaintih?s and those they seek to represent pursuant to 29 U.S.C. ?2l?lbl were paid wages free and clear which were less than the statu- tory minimum of $3.35 per hour required by the FLSA: 34. Defendants Ken and Debra. Malcolm and Frank Blanding Willfully failed to keep and maintain the records of wages. hours and deductions from wages required by the recordkeepinq provxsions of FLSA. 39 U.S.C. and its implementing regulations; and 35. As a result of these intentional and willful acts and omissions by the defendants Ken and Debra Malcolm and Frank Bland- lng. the named plaintlli?s have sulrcred damages. (k Defendant Blending was properly served with a copy of plaintiff's com? plaint on September 30. 1985. He has failed to file an answer or any response to that complaint within the time pro- vided by law: Accordingly. by oper? ation of Sid). Blanding has admitted each violation of AWPA and FLSA alleged by plaintiffs in their complaint.? See Shakman v. Demo? cratic Organization of Cook County. 533 F.2d 344. 352 mm Cir. 1976). cert. denied. 429 US. 858 (1976): Mapco. Inc. v. Grunder. 473 F.8upp. 401. 406 (NDOhlo 1979). On the same date as the complaint was filed. plaintiffs caused this court to issue a subpoena duces realm. which was personally served on defen? dant Blanding on October 7. 1985. Ser- vices of North Carolina in Newton Rule ?nal states. in pertinent part. that: "Aver? ments in a pie-ailing to which a responsive pleading is required. other than those as to the amount of damage. are admitted when not denied in the re- sponsive pleading? . HOWARD v. Grove. North Carol 25. 3985 at mm In this lu'Hl?ll?l and Blandinu prnducr busm'ess records re ml Liil? pi: his was payroll rec: tilfs. lilamllnu {allot scheduled docinnenls, No mm suhpmma or ohwctio ever filed by the do: were laws-n no at Blandmz's mtentio: suhpm-na and no re: otherwxse. has subs: vanecrl as an cxmise appear and produce cident. plan-llilfs re hold defendant in court. In addition. plain court hold defendan' tempt for his Willfu order entered Feb!? Judge W. Earl Britt 1980, a civil action tiled hy the indivir this so was hrmilz States I this salne court a Hlanrling, r-lutrttinl' with numerous viola tory duties as :1 Earn under Llii? li?urm 'l Art (F $2041 et seq. (29F Blanding. No. 8013? On P?ehrxiarr Brill. enter?! it runs: inanently enjoining the defendant from. i. lullinu to mal serve rf' thOSe employees, other things. car Hill'nll?llAH f?fif?il withholdings lroin mas, ilw murlher employed and the time {where the pioyed on a time units of work pcrfo per unit (will-re ploycd on a piece r; ly and total week and other conditir of employment: 2. killing to prov worker with an l?bl showmg all sums from the amount count of the labo: and thr- for 3. failing. in post place the terms a The F'l'lf?HA was the st; th bin? (I. M: v. MALCOLM are indicating: met applicable health stan- at 29 GER. alation of 29 id of several cm- farm labor 'ities with re? ,med plaintiffs 0549 individuals of registration U.S.C. ?1811(b). saint at para- plaintiffs right to pay? wage for the for defendant In paragraphs aint. plaintiffs at employment by Debra. Malcolm mimer4 nlainti?'s preser a paid gas free 5 than the statu? hour required by Debra. Malcolm Lilly failed to keep 3 of wages. hours =3 required by the if FLSA. 29 U.S.C. iting regulations; intentional and by the defendants and Frank Bland? .Ts have suffered was properly plaintilf?s com- 30. 1985. He has or any response in the time pro- ingly, by opera Blending has of AWPA and inti?'s in their roan v. Demo- Cook County. Cir. 1976). cert. 3761: Mapco. Inc. Supp. 401. 406 the complaint nosed this court a. cinces forum. served on deferr- ioer 1985. Ser~ line. in Newton am part. that: ?Aver- a responsive pleading a as to the amount. of not denied in the re- HOWARD V. MALCOLM 27 WE Case-51115 Grove. North Carolina. on November 25. Will": at $0200 tun, loi' his deposition in this action and further requiring Blendingr to produce a. number of his business records relevant to his em? ployment of the plaintili?s. including his 1985 payroll records for the plain- ti?'s. [Handing failed to appear at the scheduled dcpomtion or produce any documents. No motion to quash the subpoena or objection of any kind was ever ?led by the defendant. Plaintiffs were given no advance notice of Blanding's intention to disregard the subpoena, and no reason. legitimate or otherwise. has subsequently been ad- vanced as an excuse for the failures to appear and produce, Based on this in? cident. piaintitls request the court hold defendant in civil contempt of court. In addition. plaintiffs request this court hold defendant. in criminal con- tempt for his willful violations of an order entered February 3, 3981 by Judge W. Earl Britt of this district. In 1980. a civil action similar to the one ?led by the individual plaintills in this case was brought by the United States Department of Labor (DOL) in this same court against defendant Blending. charging the defendant with numerous violations of his statu? tory duties its a farm labor contractor under the Farm Labor Contractor Registration Act (FLCRA). 7 @5204] et seq. (1982); Marshaii v. Branding, No. (E.D.N.C. 1980); On February 3. 1981. Judge Britt entered a. consent judgment per~ manently enjoining and restraining the defendant from. inter alia: i. failing to make, keep and pre? serve sdequate records concerning those employees. including, among other things, each worker's total earnings in each payroll period. all withholdings from wages. not earn- imzs. the number of units of time employed and the rate per unit of time (where the employee is em? ployed on time basis). number of units of work performed and the rate per unit (where the employee is em- ployed on a piece rate basis}. the dai- ly and total wm'kly hours and other conditions and practices of employment; 2. failing to provide each migrant worker with an itemized statement showing all sums withheld by him from the amount he received on ac- count of the labor of such worker and the purpose for which withheld; 3. failing to post in a conspicuous place the terms and conditions of The FLORA was the statutory pre-dmessor of the 29 iU'H'l 1813(43. occupancy of the housing facilities which he manages. supervises or otherwise controls; 4. employing fuil~time or regular employees who have not obtained ei? ther a Farm Labor Contractor Elm-R pioyee Identi?cation Card or a. Farm Labor Contractor Certi?cate of Reg~ istration: 5. failing. without justi?cation. to comply with the terms of any work? ing?arrangements he has made with migrant workers: and 6. failing to ascertain and disclose to each worker at the time the work- er is recruited the information re- quired by 7 13.8.0. ?2045lb3 but not limited to the following: The area of employment: The wage rates to be paid to the worker: The charges to be made by the contractor {or his services: The period of employment: (6) The crops and operations on which the worker may be em- ployed: if) The transportation, housing and insurance to he provided to the worker: The existence of o. strike or other concerted stoppage. slowdown, or intermiption of operations by em- ployees at a. place of contracted employment: and The existence of any arrange- ment with any owner. proprietor. or agent of any commercial or retail establishment in the area of employment under which he is to receive a. commission or other bene?t resulting from any sales provided to such commercial or retail establishment from the migrant workers whom he re? Bruits. fl?hrough his failure to answer plain- tiffs? allegations of numerous vioism tions of their AWPA rights in 1985. plaintiffs contend defendant Blending has admitth six independent viola- tions of Judge {Britt?s order. Based on the aforesaid. it is appar? ent plaintiffs have shown the neces- sary factual predicate for the issuance of a show cause order.? They have 'Aitlmugh may not hum- sinnuinn to initiate and cwrtulniy do not !mw- standing in prns? mute the charge oi criminal contempt. haw: on Judge Britt?s 1981 order in a ciilleront case. plank ti?s havn bromzht facts to this court's attention sufficient for the court it.er in inquirf', mu into whether a. violation of that court order has occurred. But see US. ex rel Vuittun e-t l-?iis HA v. S4 LW 2348 Cir . Derr'mlwr HS. 1935) (federal district court?s of attorney for party in underlying civil vase as special pros- ecutor in related criminal contempt does not violate alleged contemnor?s right to due processi. ?Era 1 2?7 WH Cases 1116 HOWARD V. MALCOLM alleged defendant; has refused to do an act commanded by an order of this court. thus. if proven. constituting civil contempt. and they have alleged defendant has willfully performed acts forbidden by prior court order. thus. if prow-n. constituting criminal con- tempt. See Wright 65 Miller. Federal Practice and Procedure: Civil ?2960 (1973). Accordingly. defendant Frank Blanding is hereby ORDERED to ap? pear before this court on February 24. at 4:30 pm. at the Federal Courthouse in Raleigh. North Carolina. to show cause why he should not be held in both civil and criminal contempt for the reasons set forth in this order and elaborated upon in plaintiffs? motion. Because one found in either civil or criminal contempt may suffer impris? onment. the defendant has a constitu- tional right to counsel. and. if he can not afford one. counsel will be appoint? ed for him. If the defendant wishes to be considered for the appointment of counsel by the court. he shall appear before Magistrate Dixon on February 7. 19.86. at 10:00 am. in Courtroom 2 at the Courthouse in Raleigh. North Carolina and make his request at that time. At the February 24 hearing in Ra- leigh. :the court will conduct any evi? dentiary hearing necessary to deter? mine if defendant is in civil contempt of this court. Plaintiffs shall be pre- pared to testify. as shall defendant should he elect to do so. as contempt may not simply be found based on plaintiffs affidavits attached to their motion. In addition. if the court finds from the February 24 hearing prob- able cause to believe the defendant is in criminal contempt of this court. a criminal charge in that regard will be instituted by the court through the United States Attorney?s Of?ce at that time. SO ORDERED Order Plaintiffs. six migrant farmworkers. initiated this action by complaint. ?led September 23. 1985. alleging nu- merous violations of the Migrant and Seasonal Agricultural Worker Protec? tion Act (AWPA). 29 11.8.0. ?1801 ct the Fair labor Standards Act (PLEA). 29 U.S.C. 95201. et. seq. the Fed- eral Insurance Contributions Act (FICA). 26 #53191 et seq? and the Federal Unemployment. Tax Act (FUTA). 26 U.S.C. ?3301 et seq. Plain? tiffs also seek class certi?cation on three of the claims relating to nonpay? ment of FICA and payroll taxes by defendants Blandinsz and the Mal- colms. pursuant to Fed. R. Civ. P. 23th). This matter is before the court; on plaintiffs motion to compel defen- dant Godwin to allow plaintiffs repre? sentatives to enter. inspect. measure. and videotape defendants migrant la- bor camp located in Sampson County. North Carolina. Fed. R. Civ. P. 34(b) and 37(3). Plaintiffs further move. pursuant to Fed. R. Civ. P. for an order awarding them the attorney?s fees and costs involved in pursuing the instant motion. Defendant Godwin has not responded to plainti?s? motion within the time provided by law. thus. the matter is ripe for disposition. Defendant Godwin is a North Caro- lina resident who operates and has op- erated a farming business in Sampson County. North Carolina in mm? and 1985. Godwin allegedly owned the mi- grant labor camp that was used to house the plaintiffs during their em? ployment with the other defendants. It is admitted that he rented housing to defendant Blanding. a Florida-based farm labor contractor. during that pe? riod of time. Answer of defendant God~ win at para. 6. Plaintiffs have alleged only one claim for relief alzainst Godwin. sub- stantively claiming that: 40. Defendant Davzd Godwin has intention?- ally violated the AWPA and its implement?- ing regulations in that he: a. failed to ensure that. the housing used by the defendant Blanding to house the named plaintiffs in 1985 met the applicable state and federal substantive safety and health standards during the entire time it was used to house those named plaintiffs in violation of 29 U.S.C. ?1823lalz and b. permitted the named plaintiffs to occu? py the housing used by defendant Frank Blanding to house them in 1985 before de? fondant had obtained and posted a certi?cate indicating that the housing met applicable federal safety and health standards set forth at 29 GER. ?1910.l42 in violation of 29 U.S.C. ?1823(b)(1). Plaintiffs Complaint at paras. 40 and 41. See also parasNovember 4. 1985. defendant filed his answer and a motion to dis? miss or. alternatively. for summary judgment. In his answer. Godwin de? nied all of the factual allegations con? tained in paragraph 40 of plaintiffs complaint concerning: the condition of the housing used to house the plaln~ this and his business relationship in this regard with defendant Blanding. Answer at para. 15. - On October 25. 1985. plaintiffs served Godwin with their ?First Rte- quest for Entry and Inspection" of his labor camp located off of SR 1633 in Sampson County. Plaintiffs requested I v. permission. in . Civ. .34. to and photogra: Thousing on De- for purpo: conformity wit. health standar ed on Novembc plamtills' requ the property is any mation as to and wnuld not described in th request was ov: scope of Fed. In an appar the urumsse w: I Judicial so! wrote to Gt vernber 27, i9} rectly on poi overruling mat tions by courts tural employer Base cou dam, withdraw cember F5. l985. Subsequentl} calls hetwpon r: ducod an ogre! counsel would plaintiils? requx camber 9. 1985. till?s' counsel a Hunt's counsel to rs mailed that daj Contrary to fendant's Decel reiteraws dole cerns. additional clues the requested ?led this rnotio Rule 34ml. thorizes the insnoction. exa" photographing lects in the p: another party. Federal Courts 'rtum in rmmsel opinion of v. Bright. N. al.. No. ury 9. 1.0841 for pin com: in the court? ulvvn defendant?s fn mnle m' (m lk-N-mht-r 4. rig-fondant l-rv Simulation" on ?our. vs aL v, 3! (FLU sult'lng? :1 number of gmwulmq lmusmg 'fl identical try. MALCOLM d. R. Civ. P. fore the court compel defen- ainti?s? repro- )ect. measure. ts? migrant la- upson County. ., Civ. P. 34(b) 'urther mave. P. 37(all4). for the attorney's 1 pursuing the dam; Godwin .inti?s? motion 1 by law. thus. lposition. a North CaroSampson a. in 1984 and owned the 1mm was used to ring their em? defendants. It ted housing to FlaE ?L?based luri. that pe- lefcndant God- ;ed only one Godwin. sub- ln has intention? its implement? he housing used lg to house the ct the applicable :tivc safety and lie entire time it .med plaintiffs in Na): and llainti?s to occu- lefendant Frank 1 1985 before de?~ aimed and posted mt the housing t?ety and health FR. ?1910.142 in llblill. paras. 40 and 21. 22. and 29. 985. defendant motion to dis- for summary er. Godwin de- ?le-cations con- 0 of plaintiffs' he condition of )use the plain- relationship in dant Blanding. 98: glainti??s 1911? First Re- spection" of his of SR 1633 in itilfs requested 1? HOWARD v. MALCOLM 2'7 Cases ll 17 permission. in accordance with Fed. R. Civ. P. 34. to enter. inspect. videotape and photograph the property and housing on December 2. $985. at 10:90 a.m. for purposes of determining their conformity with designated safety and hostith Standards. Defendant respond? ed on November 26. 1985. objecting to plainti?s? request on three grounds: 1) the property is and has been vacant: 2) any inspection would result in infor- mation as to present condition only and would not re?ect the conditions described in the complaint: and 3) the request was. overbroad and exceeds the scope of ROWE. 26. In an apparent. attempt to resolve the l??lp?SSf?. without the necessity for judicial intervention. plaintil'ls? coun- sel wrote to Godwin?s counsel on No- vember 2'7. 1985. citing authority di-v rectly on point from this district overruling materially identical object- tions by counsel for another agricul- tural employer operating within this district." Based on this authority. plaintiffs? counsel requested defen- dant withdraw his objections by De- cember 6. 1985. a series of telephone calls between counsel apparently pro- duced an agreement that defendant?s counsel would formally respond to plaltitiifs? request. by lplopiionc on De- cember 9. 1985. On December 9. plain? ti??s? counsel was informed by defen- dant's counsel that he would respond to plaintiffs' request in a letter to be mailed that day.? Contrary to plainti?s? assertions. dew fendant?s December 9 written response reiterates defendant's previous con- cerns. withdrawing none. and posits additional objections and conditions to the requested entry. Plaintiffs then ?led this motion.? Rule 340:?. as amended in 1970. au- thorizes the ?broadest sweep of access. inspection. examination. copying. and photographing of documents or ob? jects in the possession or control of another party." Wright. The Law of Federal Courts ?87 (4th ed. 1983). A In (-ounm-l for plmmilrs? lotu-r was Ll"- opinion of Mauls.th McCoer in Phillips. Pf. al.. v. ?right. m. al.. No. (F. NIL. Jami- or}; El. 1984] {or plaintiffs" Dom-mbt-r IR. H135. Memorandum contains this: rm'immlm ul facts which. in the court's opinion. lu?l? (informants: lullurc to respond to plaintilfs? motion or mrmorandum of law in support there-qr. "(in Dem-moor 4_ isms, pluinta?s? muan had mink-d Ln di-fendant's counswl a copy of a ?Discov- l-ry Stipulation" Nimrod mm Kay Fighting Boar. M. v. Hubert Godwin. Pt. 9.1.. No. 35?l2?4?GlV?5 December 4. Willi]. re? :mlving :1 number n; by another farmer providing housing for rarmworkers to a. materially identical request. for inspection and en? .rv. motion in order to obtain inspection is not required. A simple request for in? spection. served on the party from whom inspection is sought. is all that is necessary. Id. The request must ll set forth with reasonable particularity" the items to be inspected and 2) specify a reasonable time, place. and manner-1 for the inspection and related acts. Id. A party served with a request for inspection must serve a written re? sponse to that request ordinarily with? in thirty (30) days. Failure to do so in a timely manner exposes the obiecting party to sanctions under Rule 37(dl. The response must indicate the in? spection will be permitted or state. with speci?city. the objections to the request. Id. If an Ubj?ctl?n is made. as in this case. the party seeking discov- ery may move under Rule 37(al to compel the inspection sought. In the case at bar. both plaintiffs and defendant have substantially complied with the initial procedural requirements. A proper request was made and objections noted. However. defendant has subsequently failed to respond to plaintl?s? motion to com? pel. thus. making it extremely difficult for the court to review _in any detail defendant's objections to plaintiffs? re- quest. The court will bricily consider defendant's objections. but it considers the facts alleged in and the materials attached to plainti?s? motion to be es? sentially uncontraclicted in light of de? fendant?s non-response. A. Untimely Objectiom The only objections which defendant Godwin raised in a. timely manner are those set forth in his November 25. 1985. ?Response to Request for Entry and Inspection.? The additional objec- tions and conditions contained in his 'Dccember 9, 1985. letter to plaintiffs.? counsel were raised well beyond the, thirty (30) day time period allowed for a. written response to a request for en? try under Fed. R. Civ. P, 34m). As such. defendant has waived his right to assert the additional Decombcr ll objections. Sec. 8.2.. Perry v. Golub. ?74 F.R.D. 360, 363 (ND. Ala. 1976): Davis v. Romney. 53 247. 248 Pa. 1971). B. Doro-minors and Gener? al" Object ion Defendant's November 25 response states that plainti??s' rcqucst is "over? broad and general. and exceeds the scope of Rule How the request does so is not explained. The burden of showing that the rc? quested discovery is not reasonably calculated to lead to the discovery of div-lsCases 1118 HOWARD V. MALCOLM admissible evidence is on the party re- sisting discovery. Spell v. McDaniel. 591 F. Supp. ?090. 1115 (E.D.N.C. 1984). To meet that burden. defendant God- win's objections: .. should be plain enough and speci?c enough so that the court can understimd in what way the .. . ldiscovery request 151 8.1? leged to be objectionable. Davis v. Fendler. 650 F.2d 1154. 1160 (9th Cir. 1981). See also. Wright at; Miller. Federal Fractlce 8: Procedure: Civil ?2213 (H170). Defendant's citation of the phrase ?overbroad and general" does nothing.r to explain in what man? ner the request is ?overbroad? or "gen- eral." Objections to discovery which simply recite stock phrases are not co? lorable. See Hickman v. Taylor. 329 US. 495 (1947). Having reviewed plaintiffs? re- quest. the court finds it sufficiently speci?c in terms of the time. place. and manner of entry and inspection as well as the property to be inspected. In addition. the reason for the request is stated as are the applicable federal and state health and safety regulations. Accordingly. defendant?s objection is UVERRULED. C. Relevancy Obiections Although not phrased as such. im- pllcit in defendant?s objections is a claim that :the entry and inspection is not reasonably calculated to lead to the discovery of admissible evidence. In particular. defendant argues that the inspection would not reflect the conditions stated in plaintiffs com- plaint. As this court has previously stated in another context: Rules 26 through 37 of the Federal Rules have been interpreted liberally to allow maximum discovery. Hickman v. Taylor. 329 US. 495. 87 S. Ct. 385. .91 451 (1947). It is clear that what is relevant in discovery is far different from what is relevant at trial. in that the concept at the discovery state is much broader. See C. Wright. Law of Federal Courts 4031 (1975}. Discovery is desiizned to define and clarify the issues. if requested materials are reasonably calcu- lated to lead to discovery of admissmle evi? dence. the discovery request is relevant. P. 26 (bill): Weddington v. Consoli- dated Rail Corp. 101 FRED. 71. 7301.13. 1nd. 1984). Alliance to End Repression v. Rock? ford. 75 441. 444 (NJ). Ill. 1977). Therefore. discovery requests should be complied with if there is a reasonable possi~ bility that. the information Sought may be relevant to the subject matter of the action. Sherman Park Community Association v. Wauwatosa Realty. 486 F?.Supp. 838. 845 Wis. 1980). Spell v. McDaniel. 591 Supp. at 1114. However. neither Rule 34 nor Rule 26 permits intrusive discovery upon a bare skeletal request when confronted with an objection. Belcher v. Bassett Furniture Industries. Inc. 588 F.2d 904. .908. 18 Cases 1078 (4th Cir. 1978). Some degree of need must be shown. Id. Need is generally shown by establishing relevancy of the desired discovery to the cause of action. Id. In addition. since entry upon a par- ty?s premises might entail greater bur~ dens and risks than most other forms of discovery. the Fourth Circuit re? quires a greater inquiry into the ne- cessity for the inspection. id. The ?de? gree to which the proposed inspection will aid in the search for truth must be balanced against the burdens and dangers created by the inspection.? Id. 12] Applying the above principles to the case at bar. the court ?nds the balance tips in favor of allowing the inspection. Plaintiffs? case against de? fendant Godwin concerns the safety and health conditions of his housing, including the physical facilities avail- able at the housing. As part of their case. plaintiffs seek to photograph and videotape the housing and all those facilities specifically cited in and re- quired by applicable federal and state safety and health regulations. As such. there is no doubt that pialnti?s? dis- covery request appears reasonably cal? culated to lead to the discovery of ad- missible evidence the basic structure. physical condition. and fa?? cilities available at the farm labor in the spring and summer of 1 85. Defendant does not argue that the property is not in his possession. custo- dy. and control. He does not object that the inspection would be unduly bur? densome or would cause any speci?c danger or hardship. Rather. his pri- mary focus is on the fact that the property is now vacant and any in- spection would result only in informa- tion as to the property?s present condi? tion. not conditions as they existed this past summer. Although. under certain circum~ stances. defendant?s argument might be of considerable merit. such is not the case in this litigation for a number of reasons. First. plaintiffs complaint was timely ?led in relation to when defendant?s violations allegedly oc- curred and plaintitfs? request for entry was filed within (me month of the lil- of the complaint. Thus. plain have moved as expeditiously as possi? ble to seek entry to and inspection of the property. There is no relative prob- lem of remoteness in time to the actual events at issue. Second. defendant does not allege with any particularity what. if any- thing. has physically changed on the property so as to make any inspection i- !'ll HOWARD V. MAI irrelevant. As a [re :54 contemplates en after a lawsuit ha suits are often file quently years alter the predicate for i. has occurred. in tl sought for a period (6) months from tl?= question. Were defe gument of "chany prevail. nary any e: could occur simply of time. Such a the intent. if not tl Civ. Absent speci?cally deiinea property. a genera basis of "changed not suffice to defeat. and inspection. Se: Eastern 8.8 Lines. liltl?ifplai order allowing bin: and take measuren: case. even though board occurred two 'l?hird. allowing 9: is not tantamount evidence discoverer! fondant can show and its facilities changed since the any evidence gal: through this procew rendered inadmissil Finally. even if to look exactly as it d1: number of the res plaintiffs relate to and seemingly cons property. For and ?1910J42iaull concs the property and swamps. sink holes collections of water. ful that the draina: property have variu months. Section 19 to the size of the pro on overcrowding, an iocatimz the ramp from any livestock. establishes extensive ments for each cam section regulates supply. By way of in 20 GER. ??654.406. .417; NC. Gen. Stat. and 166.10. Accord: relevancy objectio RULED. Based on the afo Godwin is hereby 0 mil; no more than fr tives of plaintiffs to; cotape. measure. an property and the for mom. located in VIALCOLM v. Bassett 3.. 588 F.2d ?78 (4th Cir. ed must be ly shown by the desired ction. Id. upon a par- greater buo- other forms Circuit re- ?mto the ne- ld. The ?de- inspection "uth must be urdens and pection." 1d. principles to rt ?nds the allowing the 3 against de? 5 the safety his housing, cilities avail- part 0? *heir itogrs and nd all ..nose 1 in and re- ral and state one. As such. laintili?s? dis- monably cal- :overy of ad- the basic tion. and fa? farm labor 1 summer of gue that the ession.custo- of. object that unduly bur- any speci?c ".her. his pri? act that the and any in- in informa- condi- they existed ?.ain circum- ument might . such is not for a number is' complaint tion to when allegedly oc- uest for entry of the lil- lus. piainti??s? nusly as possi- inspection of relative prob- to :ctuai yes not allege what. if any- ianged on the my inspection HOWARD V. MALCOLM 27 WE Cases 1119 irrelevant. As a general matter. Rule 34 contemplates entry and inspection after a lawsuit has been liled. Law- suits are often tiled months and fre- quently years after the event forming the predicate for the cause of action has occurred. In this case. entry was sought for a period not more than six (6) months from the actual events in question. Were defendant?s general ar- gument of ?changed conditions? to prevail. nary any entry and inspection could occur simply due to the passage of time. Such a ruling would violate the intent. if not the letter. of Fed. R. Civ. P. 36. Absent some material and speci?cally delineated change in the property. a general objection on the basis of ?changed circumstances? will not suf?ce to defeat a motion for entry and inspection. See. Mulligan v. Eastern 8.8 Lines. 6 F.R.D. 50 1. 696 1946)(plaintiff entitled to an order allowing him to inspect a ship and take measurements in a Jones Act case. even though the accident on board occurred two years earlier). Third. allowing entry and inspection is not tantamount to admitting any evidence discovered therefrom. if de? fendant can show that the property and its facilities has materially changed since the summer of 1985. any evidence gained by plaintiffs through this procedure likely will be rendered inadmissible at trial. Id. F?inally. even if the property does not look exactly as it did six months ago. a number of the regulations cited by plaintiffs relate to fairly immutable and seemingly constant aspects of the property. For example. 29 OER. ?1910.142(al(1) concerns the location of the property and its relationship to swamps. sink holes and other surface collections of water. it is highly doubt? ful that the drainage qualities of the property have varied in the last six months. Section 1910.142laH2l relates to the size of the property. prohibitions on overcrowding. and the necessity for locating the camp at least 500 feet from any livestock. Section 19l0.142(b) establishes extensive physical require? ments for each camp shelter and sub- section regulates the camp?s water supply. By way of further example. 20 GER. ??654 406. .409. .412. and .417: N.C. Gen. Stat. 166.3. and 166.10. Accordingly. defendant's relevancy objections are RULED. Based on the aforesaid. defendant. Godwin is hereby ORDERED to per- mit no more than four (4) representa- tives of plaintiffs to enter. inspect. vid- eotape. measure. and photograph his property and the facilities and equip~ merit located in Sampson County. 5 24?? North Carolina. off SR 1633 for a peri- od not to exceed three (ill hours on a date and time mutually agreeable in counsel {or the parties within thirty (30) days of the date of service of this order. As for plainti?'s? Rule fl? motion for fees and costs. if plaintiffs wish to pura sue this matter, they shall ?le an affi- davit with the court reflecting their counsel?s costs and reasonable hours expended in pursuing this motion as well as stating: a reasonable hourly rate. within ten (10) days of the date oi? service of this order. {Defendant shall have ten (10) days from the date of service of the af?davit to respond and a hearing will be scheduled by the court as required by Rule SO ORDERED. This the 3rd day of February. 1986. Order Plaintiffs. six migrant l'armworkers. initiated this action by complaint. ?led September 23. 1985. alleging nu~ merous violations of the Migrant and Seasonal Agricultural Worker Protec? tion Act (AWPA). 29 USO. lililm et. seq. the Fair Labor Standards Act (FLSA). 29 U.S.C. {5201 et. seq. the Fed- eral insurance Contributions Act (FICA). 26 U.S.C. ?3101 et. seq. and the Federal Unemployment Tax Act. 26 U.S.C. ?3301 et. seq. Plaintiffs also seek class certi?cation on three claims re- lating to nonpayment nl li?lCA and FUTA payroll taxes by defendant Blanding and the Malcolms pursuant to Fed. R. Civ. P. 23th). This matter is before the court on defendant God? win?s motion to dismiss or. alternative- ly, for summary judgment. to which plaintiffs have responded. Thus. the matter is now ripe for disposition. Plaintiffs have alleged only one claim for relief against Godwin. sub- stantively claiming that: 40. Defendant David Godwin has inten? tionally violated the and its imple? menting regulations in that he: a. failed to ensure that the housing used by the defendant Bianding to house the named plaintiffs in i985 met the applicable state and federal substantive safety and health standards during the entire time it was used to house those named plaintill?s in violation of 29 (3.3.0. ?1823lal; and b. permitted the named plaintiffs to occu- py the housing used by defendant Frank to house them in 1985 before do- lendant Blending had obtained and lmsted a certificate indicating that the housing smet applicable federal safety and health standards set forth at 29 GER. $1910.!? in violation of 29 (3.8.0. In support of this claim. plaintiffs further allege that: (1) They "were migrant farm workers With- in dehnition of that term found in 29 0.55.0. ?Ji wuiwm 27 WH Cases HOWARD v. MALCOLM #:1380243; at all times relevant to this ac? Lion." (23 Defendant David Godwin is a North Carolina resident who operates and has op- erated a farming business in Sampson County. North Carolina. l984 and 1985. De? l'emluut Gouwm owned the migrant labor camp in Sampson County that was used to house the plaintiffs during their employ? mont with the other defendants. Delendunt Godwin rented that housing to Frank Hluuding during that period 01' time. (3) In or about the late spring or summer of 1985. the named plaintiffs were jointly employed by Lin: dole-mman to perform farm labor in Hw lwlus us the. defendants. listed in paragraph 8 [defendants Ken and Debra. Malcolml above for varying pcrtods of tune. The wages which the plalntiifs ro- ccivvd free and clear from those defendants for that work were less than those required by the FLSA for the work that they per? formed. (4) At all times that the named plaintiffs were moployed by defendants and Ken and Debra Malcolm, they were housed in rmgrant larmworker housing owned by band Godwm and rented by Frock Bland- that was in violation of the substantive requirements of applicable federal and state migrant housing standards; and (5) Defendants Frank Blanding and Da- vid Goowm permitted the name plaintiffs to occupy the housmg used by Blanding to house the plaintiffs without obtaining and posting a. certi?cate from an appropriate state or federal agency indicating that. the housing met applicable federal safety and health standards. Those defendants never obtained such a. certi?cate. Complaint at paragraphs 9, 21, 22. and 29. Delendant contends that no agricul- tural employment relationship existed .between plaintiffs and defendant. thus. plainti?s? AWPA housing claim against him must be dismissed. Plain? tilfs argue that the housmg provisions of the AWPA apply to any person who owns or controls the housing which is used by migrant workers and that an employment relationship between plaintiffs and defendant is not re? quired. The court has covered this tor- rain before, having recently consid- ered the same issue in Haywood v. Barnes, No. Feb. 13. 1986). For the reasons which follow. the court ?nds plaintiffs? arguw persuasive. Initially, the court notes that defen- dant?s motion is couched in the alter- native to dismiss or for summary judgment. Normally where. as here. deli-nciunt has moved for summary judgment immediately after the filing or the case prior to any relevant dis- covery, a motion for summary judg- ment should not be considered. See v. Mcharry Medical College. 717 Pad 1523. 1534 (6th Cir. 1983}. The illULlUll is deemed premature and is generally stayed pending further dis? covery. Sec. (22.35.. Alabama Farm Bu- reau Mutual Casualty Coriipany. inc. v. American Life Insurance (30., 606 F.2d 602. 609 (5th C112). cert. denied. 449 US. 320. 8.0L 7'7. 66 lurid.le 3:2 (ll-980). Thus. in the usual course of events the court would review deion? daiit?s motion as one to dismiss or would postpone any ruling pending completion of discovery relevant to the factual issues raised by defendant. However. in this case. since defen? dant's own evidence indicates sum- mary judgman should be denied. the court will dispositively decide defer)? dant?s motion. Sections 1823(a) and 1823(2))(1) of Ti- tle 29 of the United States Code road. in pertinent part, as follows: {Elach person who owns 01' controls 3. facil- ity or real property which is used as hous? ing for migrant agricultural workers shall be responsible for ensuring that the facility or real property complies with substantive federal and states sulcty and healtl?i stun- clouds applicable to that housing. lNlo facility or real property may be occu- pied by any migrant agricultural worker unless either a state or local health author- ity or other appropriate has certi- lied that the incility or property meets ap? plicable safety and health standards. No person who owns or controls any such facil? ity or property shall permit it to be occu pied by any migrant agricultural worker unless a. copy of the certification of occupancy is posted at the site. (emphasis added). The US. Department of Labor promulgated regulations in 1983 defining the terms ?owns or con?- trols". 29 GER. and The DOL simultaneously promulgated a regulation de?ning the applicable federal migrant housing standards. 29 OER. ?500.l32. 29 GER. ?500.130(b) states: A farm labor contractor. agricultural em- ployer. agricultural association. or any om- er person is deemed an "owner" or housmg facility or real property if said person has a legal or equitable interest in such facility or real property. (emphasis added}. Without even considering the de?ni? tion of who ?controls? a. housing facil- ity under 29 GER. ?500.13U(cl. the language of ?500.130(bl makes it clear that the housing provisions of ?1823 ol' the AWPA apply to any person who rents a faculty used to house migrant workers regardless of whether that person is an "agricultural employer? under 29 [38.0. ?1802(2). To hold its defendant argues. that one has to be an agricultural employer to be held liable under ?1823. is to disregard the clear language and intent of the stab lite. Any person who has a. legal or equitable interest lil the property bc~ ing used as migrant housing is liable under the statute for violations of 29 ORR. A person who rents In tell his pro} is a ?l mean'm a. legal leases. apply when ing to 1 ply "on ii. Rep. sion at intends cd with 1:15; to owns o1 housint log that] lists and hen P?inull find 501?. of ?own would i plaintirl out interpre and pro! and its FLSA. Carpet Cases 14 grim EC 1311 mi 1.976). CI 82 1237 Labor?s 951823 at 3. 1985. of Law. plaintilf. supra. Applyi at bariss dant adn Sam Blanding contracu of time. fendant'; 1985. roll tion, the fondant Health l: rangeme: the pro}: tion of r, partmem the issuu pancyt Elecond af?davit con trove: that tilt-3 Blanding Godwm. MARC-014M 30mpany. Inc. ife Insurance ith Cir). cert. 1 8.01:. 77. 66 arse of events review defen- to dismiss or dim: pending *eievant to the if} defendant. since defen? Ldicates sumw )e denied. the decide defen- of Ti? ;es Code read. )ws: controls a facil? 5' used as hous~ ,l workers shall ,hat the facility ith substantive id health Stan- slug. 7 may occu- ultur: nrker liealt. .ithor- ancy has certi- ierty meets apc standards. No any surh {acllw to be occupied worker unless occupancy is added). . of Labor igulations in owns or con- 30d)? and promulgated is applicable standards. 29 ites: ricultuml em- on. or any orh- r" of a housing.' person has a iUCh facility or Id). the doom-? loosing facil? the Lakes it clear is of ?1823 of person who lose migrant ?hether that ii muployer" To hold held lisregard the of the stat.- .s a or propl he- is liable lotions of 29 1 who rents In re HOLLY INN. INC. 2?7 WH Cases 1121 his property to a. farm labor contractor is a. ?housing provider" within the meaning of the statute and clearly has a legal interest in the property he leases. Congress obviously intended to apply the AWPA to non-employers when selecting their statutory word- ing to include ?each person." not sim- ply ?each agricultural employer." See H. Rep. No. 97?385. 97th Cong.. 2d Ses? sion at l7-l8 (1982) (?The Committee intends that this section be interpret- ed with the broadcast possible mean? ing to ensure that the person who owns or controls the facility used as housing. . .is responsible for maintain? ins; that facility in compliance with all substantive federal and state safety and health standards"). Finally. even if the court were to find some ambiguity in the definition of ?owns or controls." that ambiguity would have to be decided in favor of plaintiffs. since the courts have. with- out exception. adopted an expansive interpretation of all the de?nitions and provisions contained in the AWPA and its statutory building-block. the FLSA. See. Dunlap v. Carriage Carpet Co.. 548 F.2d 139. 144. 22 WE Cases 1481 (6th Cir. 1977): Usery v. Pil- grim Equipment (30.. 527 F.2d 1308. 131} 11.6. 22 WH Cases 783 (5th Cir. 1976). cert. denied. 429 US. 826Cases 1287 (1976). See also the Department of Labor?s interpretation of 29 U.S.C. ?1823 attached to plaintiffs? December 3, 1985, Supplemental Memorandum of Law. indicating agreement with plaintiffs? position: H. Rep. No. 97?885. supra. Applying these principles to the case at bar. the court ?nds defendant God- win is the owner of the housing facti? pity at issue. First. in his answer. defen? dant admitted that the rented housing in Sampson County to defendant Blanding. a Florida?based farm labor contractor. durign the relevant period or time. Answer at paragraph 6. Do- fondant's af?davit of November 4. l985. reiterates this position. in addi- tion. the af?davit establishes that de- fendant noti?ed the Sampson County Health Department of the leasing ar- rangement. so that they could inspect the property. See NC. Gen. Stat. 85 40 (requiring an inspec? tion of migrant housing by the De- partment of Human Resources and the issuance of a permit prior to coco- pancyl. Second. the defendant has filed no af?davit. or evidence with the court controverting plaintilrs' allegations that they were housed by defendant Blanding in the housing leased by Godwin. To the contrary. defendant a, filed the af?davit of Mr. Gary Free- man. an employee with the Sampson County Health Department, who is charged with inspecting migrant housing and who states: 2. That he is familiar with the labor camp which is the subject of this action. 3. That on or about the day of June. 1935. he did receive an application for permit to operate a migrant housing facility from David Godwin. Based on the aforesaid. the court concludes defendant was the ?owner? of a. facility used to house migrant farmworkers. pursuant to 29 (1.8.0. ?1823. and defendant's motion for summary judgment is DENIED. To the extent defendant's motion indi? rectly argues for summary judgment on the merits of plaintiffs? housing claim. and the court is not at all sure it does. that aspect of the motion is NIED without prejudice to defendant's right to renew said argument after more extensive discovery has occurred. SO GREERED. In re HOLLY INN. INC. Minnesota Court of Appeals In re HOLLY INN. INC, doing busi- ness as LA FONDA DE ACEBO. No. April 22. 1986 STATE LAWS 1. Minimum wages Limitations period Minnesota act 1475.1551 ?75.535 Two-year limitations period of in? nesota Payment of Wages Act (SLL 33:331) governing ?actions? regarding wages does not apply to proceedings before state agency administrative law judge. since Act de?nes "action" as any proceeding in any state "court" . 2. Minimum wag-es Tip sharing Minnesota act b175.1553 *1 75.970 Employer that operates restaurant violated Minnesota Labor Department regulation promulgated under state Payment of Wages Act (SLL 33:331) that prohibits deductions from mini- mum wage for cash shortages or other losses resulting from waikouts. bad checks or robbery. and violated state tlp?sharing statute. where employer required waitresses to pay for short- ages. and required waitresses to share tips as employer "policy." ?2 i 1 i . CERTIFICATE OF SERVICE This is to certify that the undersigned has this date served a copy of the foregoing document on the following person(s) and/or entities listed below by nailing the same by Bus. mail, first class, postage prepaid, addressed as follows: Alfreda Williamson, Esq. Staff Attorney Employment Security Commission of North Carolina P.O. BOX 25903 Raleigh, North Carolina 27611 This the I qday of June, 1990. Robert @illis IN THE UNITED STATES DISTRICT pm FOR THE EASTERN DISTRICT OF NORTH CAROLINA g? RALEIGH DIVISION CRAIG STAN EURY, JR., and KENNETH WHITE, individually and on behalf of all other similarly situated employees of the Employment Security Commission of North Carolina, ?l?a??t?Omad?,Otg?d set we see Civil Action No. Plaintiffs, VS. VOLUNTARY DISMISSAL EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA Defendant. Now comes Craig Stan Bury, Jr., and Kenneth White, individual Plaintiffs, by and through their counsel, and the Employment Security Commission, by and through counsel, and stipulate to take a voluntary dismissal of the above captioned matter pursuant to Rule 41(a) of the Federal Rules of Civil Procedure as the parties have reached a compromise settlement of all claims. No other Class members were notified of the pending action, there had been granted no consent for the individual plaintiffs to represent others, and settlement negotiations have successfully extinguished all claims. This the wjm?? day Ofgk?a?mp 1990. JONES AVERY EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA BY: BY: Robert/j. Willis lireda Williamson P.O. BOX 28270 .0. BOX 25903 Raleigh, NC 27611 aleigh, NC 27611 2949 New Bern Ave. 700 Wade Ave. Wakeview Office Condos Raleigh, NC 27611 Suite (919) 733-4636 Raleigh, NC 27610 Counsel For Defendants (919) 856*0033 Counsel For Plaintiffs NC Bar 10730 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA RALEIGH DIVISION CRAJG STAN EURY, JR., and KENNETH WHITE, individually and on behalf of all other similarly situated employees of the Employment Security Commission of North Carolina, Plaintiffs, v. EMPLOYMENT SECURITY COMMISSION OF Civil Action No. NORTH CAROLINA, Defendant. NOTICE OF DEPOSITION Please take notice that the undersigned person or person(s) acting for that person will take the deposition of defendant Employment Security Commission of North.Carolina (ESCNC) on Monday, June 11, 1990 beginning at 10:00 AM at the offices of the General Counsel of the ESCNC, 700 Wade Avenue, 5th Floor conference room, Raleigh, North Carolina, and continuing from day ix) day until completion. This deposition will be conducted before a: court reporter or other officer authorized by the court to conduct depositions pursuant to Rule 30 of the Federal Rules of Civil Procedure. This deposition shall be used for any purpose(s) permitted under federal and North Carolina, law and rules of civil procedure. Pursuant to Rule Fed.R.Civ.P., the defendant ESCNC is requested to designate a person or persons to testify on its behalf at the deposition noticed above with respect to each matter set forth below in the attached document labeled "Areas of Designation". JONES AVERY toypf 4. BY: f? 70 Robert J, W7 lie P.O. BOX 28' Raleigh, NC 27611 2949 New Bern Ave. Wakeview Office Condominiums Suite Raleigh, NC 27610 (919) 856-0033 (919) 834-2003 Couneel for Plaintiffs Areas of Designation l. The answer(s) and each amended answer of the defendant Employment Security Commission of North Carolina to the Plaintiff's First Set of Interrogatories to that same defendant and the plaintiffs' Complaint in this action. 2. All reason(s) that the Employment Security Commission of North Carolina had for failing to pay the plaintiffs Craig Stan Eury, Jr. and Kenneth White any overtime compensation in the manner described in 29 U.S.C. Sections 207(a) and/or 207(0) 3. For any time from July 14, 1986 to the pmesent, the factual basis for any position by the defendant Employment Security Commission of North Carolina's that the ESCNC was not obligated to pay either plaintiff in this action any overtime compensation described in 29 U.S.C. Section 207(a) based upon any application of any of the exemption(s) for employees employed in a.bona fide executive, administrative, and/or professional capacity within the meaning of 29 U.S.C. Section 213(a)(1) and the regulations set forth at 29 C.F.R. Sections 541.0 through 541.315 (1989), and the identity and role of each employee, representative, and/or agent of the ESCNC that was and/or is actually involved in forming that position and/or applying that statutory exemption to the plaintiffs during any time in that same time period 4. The factual basis of any affirmative defense and/or request for relief in the Answer of defendant ESCNC to the plaintiffs' Complaint in this action 5. For the period from July 14, 1986 to July 14, 1989, the identity of the participant(s), date(s), and any statement(s) and or action(s) taken by any participant(s) in and/or as a result of any meeting(s) attended by any employee, representative, and/or agent. of the ESCNC concerning' the application. of any' of the overtime wage exemption(s) set forth in 29 U.S.C. Section 213(a)(1) to any person employed as a Rural Manpower Representative I (RMR I) at any time during that same time period 6. The subject matter of each numbered interrogatory and/or lettered interrogatory subpart set forth in the Plaintiff's First Set of Interrogatories to the named defendant in this action 7. The method(s) and/or procedure(s) actually used and/or called for by any standard agency policy of the ESCNC to determine whether the ESCNC is and/or was required to pay overtime compensation to any employee of the ESCNC at any time during the period from January 1, 1985 to the present, and the identity and role of each employee, agent, and/or representative of the ESCNC that was and/or is actually involved in implementing that method(s) and/or procedure(s) at any time during that same time period 8. The method(s) and/or procedure(s) actually used and/or called for by any standard agency policy of the ESCNC to supervise the performance of any employee of the ESCNC who was and/or is employed as a.Io?2 I, Employment Interviewer, and/or RMR II in and/or with jurisdiction over the Rockingham and/or Sanford, North Carolina offices of the ESCNC at any time during the period from July 14, 1986 to the present, and the identity and role of each employee of the ESCNC that was and/or is actually involved in implementing that supervision method(s) and/or procedure(s) during that same time period 9. The factual circumstances, date(s), identity of the person(s) involved, and the ultimate resolution of any charge(s), investigation, and/or allegation that the ESCNC had failed to pay any? employee any' overtime compensation required. by 29 13.5.0. Section 207(a) at any time in the time period from January 1, 1966 to the November 8, 1989 10. The complete factual basis for the ESCNC's application of any of the overtime wage exemption criteria set forth in the regulations set forth in 29 C.F.R. Sections 541.0 through 541.315 (1989), inclusive, to the two named plaintiffs during the period from July 14, 1986 to July 14, 1989 11. The existence, form, nature, and content of any written manual, policy, policies, practice(s), that.RMR I, RMR II, and/or Employment Interviewer employee(s) of the ESCNC who were employed in and with jurisdiction over the Sanford and/or Rockingham, North Carolina offices of the ESCNC were supposed to follow in the performance of any of the specific job function(s) and/or duties of any such employee at any time during that same time period. 12. For the period from July 14, 1986 to the present, any activities engaged in by any employee who held and/or holds the employment/job title of Rural Manpower Representative I (hereinafter referred to as for the Employment Security Commission of North, Carolina (hereinafter? referred to as the where that activity involved any trade, commerce, transportation, tranemission.or communication between the State of North Carolina and some other state in the U.S.A. or any place outside the state of North Carolina. 13. For the period from July 14, 1986 to the present, any activities engaged in by any employee who held and/or holds the employment/job title of RMR I for the ESCNC where that activity involved the use of an instrumentality of interstate commerce such as an highway, telephone, U.S. mail, and/or other euch instrumentality. 14. The number of hours of work that each of the two named plaintiffs in this action performed during each.work week that they were employed ?by' the Employment Security Commission of North Carolina at any time in the time period from July 14,) 1986 to July 14, 1989, and the method(s) used by the ESCNC to prepare any payroll records to record the number of hours worked by each of the named plaintiffs at any time in that same time period. 15. The number of hours of compensatory leave time that each of the two named plaintiffs in this action were provided and accumulated under 25 NCAC 1E Section .1006 and/or any policy of the Employment Security for any work that each of those two named plaintiffs performed during each work week that they were employed by the Employment Security Commission of North Carolina at any time in the period from July 14, 1986 to July 14, 1989, and the methcd(s) used by the ESCNC to calculate that compensatory leave time for the two named plaintiffs during that same time period. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA RALEIGH DIVISION NO. CRAIG STAN BURY, JR., ET AL, Plaintiffs ORDER ON SCHEDULING "To RULE 16(a), V. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Defendants After reviewing the record in this action, it is hereby ORDERED that all discovery be concluded on or before ?sazw Mar? . a motions of any nature (except those relating to the admissibility Pursuant to Local Rule 4.00, all of evidence at trial), must be filed within thirty (30) days of Untimely motions may be summarily disregarded. It is anticipated the close of discovery, on or before that trial in this action will be set within 60 to 120 days after discovery terminates, with the final pretrial conference noticed approximately two weeks prior to trial. It is further ordered that no party may serve on any other interrogatories in excess of si?? inclusive of subparts, and no party may notice in excess of _f5? depositions. The identity of expert witnesses will be disclosed by each party on or beforerp?i?g . W. SO ORDERED this fggf: day of 1990. 3 an? 5% ?We 7 U?ited States Magistrate m? ?as, 6; zews?ww IN THE UNITED STATES DISTRICT COURTWM Wk FOR THE EASTERN DISTRICT OF NORTH CAR XIQ RALEIGH DIVISION geeziw FEB 2? ?8 CRAIG STAN BURY, JR., and KENNETH WHITE, individually and on behalf of all other similarly situated ?ls? ?w employees of the Employment Security 3 Commission of North Carolina, Plaintiffs, V. COMPLAINT Civil Action No. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Defendants. DISCOVERY STIPULATION Pursuant to the Court's Request for Discovery Stipulation filed on February 1, 1990 in this action, plaintiffs Craig Stan Eury, Jr. and Kenneth White, by and defendant Employment Security Commission of North Carolina (ESCNC), by and through their undersigned counsel, file this Discovery Stipulation with the Court. Through their undersigned counsel, the parties to this action stipulate to the following: 1. That all discovery in this action will be concluded by August 30, 1990; 2. That the number of interrogatories that the defendant may serve on the plaintiffs may not exceed 50; 3. That the number of interrogatories that the plaintiffs may serve on the defendant shall not exceed 50; 4. That the number of depositions that each party may take shall not exceed 10; 5. That each party shall disclose to the opposing party the identity, address, and telephone number of any expert witness to be used by that party in the trial of this action at least 30 days before August 30, 1990. 5? a" ,4 j; Iii: Alfr da Willi??so?f? q. Staif Attorney Em oyment Security Commission of North Carolina (ESCNC) P.O. Box 25903 Raleigh, NC 27611 (919) 733-4636 Counsel for defendant ESCNC =Fgg??f, is, Esq. 1306 Hillsborough Street Raleigh, North Carolina 27605 (919) 834-2003 After March 1, 1989, my address and telephone number'will be: Robert J. Willis, Esq. Jones and Avery Attorneys at Law P.O. BOX 28270 Raleigh, NC 27611 2949 New Bern Ave. Wake View Office Condos Unit Raleigh, NC 27610 (919) 856*0033 (919) 834~2003 Counsel for the Plaintiffs UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA DIVISION . 8 CRAIG STAN EURY, JR., and KENNETH WHITE 9 individually and on behalf of all other similarly situated employees of the Employment Security Commission of North Carolina, 3' - 5a: . will .4 i, . sag 3; REQUEST ?$557 DISCOVERY anemia-Ion?; Plaintiffs VS. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Defendants Pursuant to Rule 16(a), the court must enter a scheduling order within 120 days after filing of the complaint. Please confer with.opposing counsel and present to the court within 20 days a stipulation addressing the following issues: 1. The length of discovery, including a date by which all discovery will be concluded. 2. The number of interrogatories each party will serve on the others. 3. The number of depositions to be taken by each party. 4. The time for disclosure of identity of expert witnesses, and the scheduling of depositions of experts. If counsel cannot agree, please submit your respective positions on these issues directly to the Clerk in Raleigh and the court will resolve the disputed issues. Following court approval, modifications of the scheduling order will be allowed only by motion and for good cause shown. Failure to comply with this order will result in entry of a scheduling order limiting nonmresponding counsel to a discovery period of four months, 50 interrogatories, ten deposi? tions, and disclosure of expert witnesses at least 30 days prior to the expiration of discovery. Note that Local Rule 4.00 requires that all motions (except those relating to the admissibility of evidence at trial) must be filed within 30 days after discovery concludes. Untimely motions may' be summarily' denied. .Also note that cases are currently being docketed for trial within 60 1x3 90 days after discovery terminates, with a final preutrial conference scheduled approximately two weeks prior to trial. so ORDERED this 13:: day of. February 1990 . BY THE COURT cc: T. S. Whitaker Alfreda Williamson Robert J. WilliS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH RALEIGH DIVISION is 5 CRAIG STAN EURY, JR., and KENNETH WHITE individually and on behalf of all other similarly situated on M, employees of the Employment Security S, Commission of North Carolina, Plaintiffs, V. ANSWER Civil Action No. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Defendants. 1. The defendants admit that the named individuals are former employees of the Rural Employment and Training Service, Employment Service Division of the Employment Security Commission of North Carolina (hereinafter and deny all other allegations contained in Paragraph 1 of the Complaint. 2. The defendants admit that at times plaintiffs worked in excess of forty hours per work week but deny all other allegations contained in Paragraph 2 of the Complaint. 3. The defendants deny that this action is a statutory class action under 29 U.S.C. Section 216(b) as alleged in paragraph 3 of the Complaint. 4. The defendants deny that this court has jurisdiction over this matter or the power to grant declaratory relief as alleged in Paragraphs 4 and 5.of the Complaint. 5. The defendants deny that venue lies with this court as alleged in Paragraph 6 of the Complaint and admit the remainder of the allegations in the paragraph. - 2 6. The defendants admit that the named plaintiffs were employees of ESC, that they are residents of North Carolina, that the named plaintiffs did engage in the primary duties as alleged in Paragraph 7 of the Complaint but deny that the named plaintiffs or ESC were engaged in interstate commerce. 7. The defendants admit all of the allegations contained in Paragraph 8 of the Complaint except as to the allegation that the named plaintiffs and/or the class that they seek to represent and/or the ESC was engaged in interstate commerce and as to that allegation the defendants deny the same. 8. The defendants deny that the named plaintiffs can maintain this action on behalf of themselves or other employees similarly situated pursuant to 29 USC sec. 216 9. The defendants admit as alleged in Paragraph 10 of the Complaint that the named plaintiffs were employed as RMR I?s by ESC of North Carolina; that as part of their work during the agricultural planting and harvest season in the jurisdictions assigned to them in North Carolina by ESC the plaintiffs may have been required to work in excess of forty hours per work week and that the plaintiffs may have worked at least one hundred hours per year during the agricultural season during the relevant periods. 10. The defendants admit as alleged in Paragraph 11 of the Complaint that the regular practice during the relevant time period of plaintiff?s employment was to allow compensatory time off for RMR I?s for work week hours in excess of forty hours per work week. The defendants deny the remainder of the allegations - 3 contained in Paragraph 11 of the Complaint. 11. The defendants deny the allegations as set out in Paragraph 12 of the Complaint. 12. The defendants admit that the plaintiffs did not receive from ESC any overtime compensation in the form of wages at the time that they were terminated but deny the remainder of the allegations as set out in Paragraph 13 of the Complaint. 13. The defendants admit that the named plaintiffs did not receive and/or not receiving any compensatory time for those work week hours they worked in excess of forty hours but deny the remainder of the allegations contained in Paragraph 14 of the Complaint. 14. The defendants admit that the plaintiffs did not receive overtime pay during their employment with BBC but deny the remainder of the allegations as set out in Paragraph 15 of the Complaint. 15. The defendants deny the allegations as set out in Paragraph 16 of the Complaint. 16. The defendants admit that the named plaintiffs and the class they seek to represent were not paid overtime compensation and deny that the same was required by 29 USC sec. 207(a) as alleged in Paragraph 17 of the Complaint. 17. The defendants deny that the named plaintiffs and the class that they seek to represent were not allowed to accrue compensatory time and further deny that the required rate is governed by the provisions of 29 USC sec. 207(o)(1) as alleged in Paragraph 18 of the Complaint. 4 - 18. The defendants deny the allegations contained in Paragraphs 19 through 21 of the Complaint. Defendants adopt and reallege paragraphs one through eighteen as though fully set out herein. 19. The defendants allege that this action does not lie with this court as the plaintiffs have failed to exhaust their administrative remedies in that plaintiff is required to seek a review of the position classification with OSP through their immediate supervisor in accordance with the regulatory provisions of the State Personnel Act pursuant to North Carolina General Statutes Chapter 126 etc. 20. The defendants assert the affirmative defense of waiver to this action. The plaintiffs admitted that they and the class that they seek to represent are RMR 1?s within the classification scheme as set up by the Office of State Personnel (hereafter OSP) for the state of North Carolina and used by ESC. The plaintiffs do not deny that ESC with the approval of OSP has exempted certain classifications from the operation of the overtime compensation provisions of 29 USC sec. 207 etc. The plaintiffs do not deny that RMR I?s as an administrative class is exempt from the overtime compensation provisions of 29 USC sec. 207 etc. The plaintiffs do not deny that as the class is exempted from the overtime provisions of 29 USC sec. 207 etc., its compensation and overtime scheme is governed by the regulations and provisions as promulgated by OSP pursuant to NCGS Chapter 126 etc. The plaintiffs do not deny that the positions were properly classified and exempted from the overtime provisions of 29 USC 207 etc. The defendants affirmatively assert that the plaintiffs and the class that they seek to represent have waived its federal claim under 29 USC 207 etc. WHEREFORE, defendants pray that this court: Deny each and every type of relief prayed for by plaintiffs in Paragraphs though and number (1) in the prayer for relief. Dismiss the plaintiffs Complaint for failure to state a claim upon which relief can be granted. (0) Grant sanctions against the plaintiffs for filing this frivolous action. This the wilff: day December, 1989. T. S. Whitaker Chief Counsel Employment Security Commission Post Office Box 25903 Raleigh, NC 27611 Wil iamson ff Attorney Employment Security Commission Post Office box 25903 Raleigh, NC 27611 Served: Robert J. Willis ATTORNEY AT LAW 1306 Hillsborough Street Raleigh, NC 27611 .QQU mav. 23/533,! bummons 3 ?buu: CRAEG STAN JR., and ind ivii? ually and on behalf of all ther Similarly situated a 5:3 empicgyees 0f ?the Empleymen?t Security Comm 3; Earth Carolina? Ei3~?3 HaiMiffS' CASE NUMBER: "?35 SECURITY COMEESSEOE OF NORTH 4? ?exenganu. {Name and Address of Defendant; Security CammiSSiQn 0f ?srth Carslima c/e Thgmas S. Whitaker, process agen: far ?he Employment Security Commission 9f Earth Carslina F.95 Box 25903 Raleig?g NC 27611 YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon ATTORNEY {name and address) Egbert SA Williag 1306 Hillsberaugh Street Raleigh? NC 2?611 . . . . an answer to ihe wmgiaim which is herewaih served upon you, Wi?mm {?201 days after semee of ?h?s summens upon you, exc?usive of the ?ay 9f service if you fat? :0 d0 50, judgment by defautt wm be taken against you far the refief demanded in the compiaint. CLERK DATE <3?3??w?wxm?if BY AG 440 {Flew 5585i Sun?i'wmns, in a CNN Aciion RETURN 0? NAME OF sg?zzgr?? Age-If DATE .m Service of the Summons and Commath was made by me1 Aggie}; 5 a? Check one box below {0 indicate appropriare method of service C3 Returned unexeeuted: [3 Served perseneiiy upon the defendant. Piece where served: {3 Left copies thereof at the defendant's dweii discretian then residing therein. Name Bf person with whom the summons and COmpiaint were ieft: Eng house or usuai niece of ab ode with a person of suitanie age and Czther (specify 43 ff? Cgvi? 3 {me} {am we (?mini s?eiegwee Fueegeegg ?i'eei i wine em 33?? e; wwgei??i'??f ?fie ?gw?neei? *e?xei e?i?i'm?ie?ig" eewwewn Wei}? me: i; wa?iglgw 0F SERVECE FEE: i? TOTAL TRAVEL. SERVECES OF SERVER 2 s? Executed on De ewe:- ile?srwii?jies-a ?74 if Signs rure Seer Addra?ss of gin/sf i deciare under penaity of perjury under the iaws of the United contained in the Return of'Service and Statement of Service Fees is true re States of America that the foregoing information and - We 6:33?? IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH RALEIGH DIVISION - i ?i 3 CRAIG STAN EURY, JR., and KENNETH WHITE, individually and on behalf of all other similarly situated employees of the Employment Security Commission of North Carolina, Plaintiffs, COMPLAINT V. Civil Action No. EMPLOYMENT SECURITY COMMISSION OF I NORTH CAROLINA, Defendants. I. PRELIMINARY STATEMENT 1. This is a statutory class action by two former employees of the Rural Employment and Training Service, Employment Service Division, of the Employment Security Commission of North Carolina (hereinafter referred to as the for unpaid overtime wages they are due under the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 216(b). 2. The claims by the plaintiffs arose as a result of repeated work by the plaintiffs in excess of forty hours per workweek in the time period beginning with the date falling three years before the date this action was filed and ending with July 14, 1989. Despite this overtime work, the defendant did not compensate the plaintiffs the overtime wage rate for those weekly hours in excess of forty in the manner required by 29 U.S.C. Sections 207(a) and 207(0) during that entire time period. 3. This action is also a statutory class action under 29 U.S.C. Section 216(b). 'Upon filing of the required. written consents under 29 U.S.C. Section 216(b), the two named plaintiffs seek to represent all similarly situated ESCNC employees. II. JURISDICTION 4. Jurisdiction is conferred upon this Court pursuant to 28 U.S.C. Sections 1331 and 1337, and 29 U.S.C. Sections 216(b). 5. This Court has the power to grant declaratory relief pursuant to 28 U.S.C. Sections 2201 and 2202. 6. Venue over this action lies in this Court pursuant to 28 U.S.C. Sections 1391(b) and and 29 U.S.C. Section 216(b). The principal place of business for the ESCNC is located in Raleigh, North Carolina, and the policy which affected the plaintiffs and the class they seek to represent was established in Raleigh, North Carolina. IV. NAMED PLAINTIFFS 7. Named plaintiffs Craig Stan Bury, Jr. and Kenneth White were employees of the ESCNC within the meaning of 29 U.S.C. Section 203(e)(2)(C) beginning with the date which falls three years before the date this action was filed and ending on July 14, 1989. They are residents of North Carolina. During this period of their employment 'with the ESCNC, these plaintiffs were engaged in interstate commerce and/or were employed in an enterprise engaged in interstate commerce in North Carolina as Rural Manpower Representative I's (hereinafter referred to as for the Rural Employment and.Training Service, Employment Service Division, of the ESCNC. The primary duty of the plaintiffs and other RMR 1's in this work for the defendant within the respective jurisdictions in North Carolina assigned to them.by the ESCNC involved the manual registration of all principal farm employers, the manual recording of crop acreage and anticipated labor requirements, the manual taking of written orders for all agricultural work, the manually documented referral of workers to growers, and the recruiting of workers from outside areas to meet labor needs through the manual completion of numerous forms and documents. V. NAMED DEFENDANTS 8. Defendant Employment Security Commission of North.Carolina (hereinafter referred all times relevant to this action a "public agency? of the state of North Carolina and the "employer" of the named plaintiffs and the class they seek to represent within the meaning of 29 U.S.C. Section 203(d). The ESCNC was created by North Carolina state law under N.C.Gen.Stat. Sections 96w3 et sag; The ESCNC employed the plaintiffs and the class they seek to represent in interstate commerce and/or in an enterprise engaged in interstate commerce at all times relevant to this action. VI. STATUTORY CLASS ACTION ALLEGATIONS 9. The named plaintiffs Craig Stan Eury, Jr. and Kenneth White maintain this action against the defendant ESCNC for an in behalf of themselves and other employees similarly situated pursuant to 29 U.S.C. Section 216(b) for all employees of the ESCNC who were and/or are employed as RMR I's with the ESCNC for any workweek in which those RMR I employees worked more than forty hours after the date falling three years before the date this action was filed. VII. FACTUAL ALLEGATIONS 10. Beginning at least in September, 1985, the named plaintiffs and the class of persons they seek to represent were employed as RMR I?s by the ESCNC in North Carolina. As part of their work during the agricultural planting and harvest season in the jurisdictions assigned to them in North Carolina by the ESCNC, the plaintiffs and the class they seek to represent were repeatedly required to work in excess of forty hours per workweek. The two named plaintiffs worked in excess of one hundred hours of overtime work per year during the 1985, 1986, 1987, 1988, and 1989 agricultural planting and.harvest seasons in their respective North Carolina jurisdictions. 11. During this time period of the named plaintiffs? employment by the ESCNC, the ESCNC had and maintains a regular practice that the ESCNC had in effect on April 15, 1986 with respect to compensatory time off for RMR I's for workweek hours in excess of forty hours per workweek in lieu of receipt of overtime compensation within the meaning of 29 U.S.C. Section 207(c)(2). That regular practice of the ESCNC did not permit the named plaintiffs to use such compensatory time within a reasonable time period after the named plaintiffs requested permission from the ESCNC to use that compensatory time off. 12. The named plaintiffs had accrued in excess of one hundred hours of compensatory time for overtime workweek hours at the accrual rate required by 29 U.S.C. Section 207(c)(1) at the time that their, employment with the ESCNC was terminated. 0n information and belief, other members of the class that the named plaintiffs seek to represent.had also accrued.hours of compensatory time for overtime workweek hours at the accrual rate required by 29 U.S.C. Section 207(c)(1). 13. The named plaintiffs did not receive from the ESCNC any overtime compensation, in 'the. form; of ?wages at ?the ?wage rate required by 29 U.S.C. Section 207(c)(4) for those hours of compensatory time they had accrued at the rate required by 29 U.S.C. Section 207(c)(1) at the time the named plaintiffs? employment with the ESCNC was terminated in October, 1989. 14. The named plaintiffs and the class they seek to represent did not receive and/or are not receiving any compensatory time at the rate required by 29 U.S.C. Section 207(c)(1) for those workweek hours they worked in excess of forty hours in any workweek ending after the date falling three years before the date on which this action was filed. 15. The named.plaintiffs and the class they seek to represent did not receive any overtime compensation in the form of wage payments and/or salary at the rate required by 29 U.S.C. Section 207(a) for the workweek overtime hours they worked for the ESCNC during the period of their employment with the ESCNC. Plaintiffs adopt and reallege paragraphs one through fifteen as though fully set out herein. 16. During their period of employment by the defendant ESCNC in North Carolina in any workweek ending after the date falling three years before the date on which this action was filed, the named plaintiffs and those members of the class whose employment with the ESCNC was terminated during that same time period were paid overtime compensation in the form of wages at a wage rate that was less than the statutory minimum required by 29 U.S.C. Section 207(c)(4) for those hours of compensatory time that they had accrued at the time that their respective employment by the ESCNC was terminated. 17. During their period of employment by the defendant ESCNC in North Carolina during the same time period described in paragraph 16 above, the named plaintiffs and the class they seek to represent were not paid overtime compensation at the rate required by 29 U.S.C. Section 207(a) in the form of wages at the end of the specified periodic pay period. 18. During the period of employment by the defendant ESCNC in North Carolina during the same time period described in paragraph 16 above, the named plaintiffs and the class they seek to represent were not allowed to accrue compensatory time at the rate required by 29 ELS.C. Section 207(oX1) for each overtime workweek hour worked by the named plaintiffs and the class during that same time period. 19. On information and belief, the ESCNC failed to keep and maintain accurate records of hours and overtime hours worked for RMR. I employees in. the ?manner required by the recordkeeping provisions of the FLSA, 29 U.S.C. Section 211(0), and its implementing regulations. 20. As a result of these willful acts and omissions by the defendant ESCNC, the named.plaintiffs and the class of persons they seek to represent have suffered damages. IX. DECLARATORY RELIEF Paragraphs one through twenty above are hereby incorporated by reference. 21. There is a substantial and continuing dispute between the parties to this action as to their rights, privileges and immunities under the FLSA which can only be resolved and fully remedied by declaratory relief from this Court as to what those rights, privileges, and immunities are. WHEREFORE, plaintiffs pray that this Court: Assume jurisdiction over this cause; Declare illegal the failure of the defendants to pay the plaintiffs overtime compensation in the manner and at the rate required by 29 U.S.C. Sections 207(a) and of the FLSA and the failure to keep and maintain the records required by 29 U.S.C. Section 211(c) and its implementing regulations; Award monetary damages against the defendant for each of the named plaintiffs and each class member who files a timely consent to sue in the form required by 29 U.S.C. Section 216(b) overtime compensation in an amount equal to the overtime compensation wages due at the rate required by 29 U.S.C. Sections 207(a) for each overtime workweek hour worked by the named plaintiffs and that same class for all overtime workweek hours worked by those persons in any workweek ending after the date falling three years before the date on which this action is filed plus an additional equal amount in liquidated damages; In the alternative to paragraph above, award monetary damages against the defendant and for the named plaintiffs and each class member who files a timely consent to sue in the form required by 29 (1.3.0. Section 216(b) who is no longer employed by the defendant overtime compensation wages equal to the overtime compensation wages due for the compensatory time hours accrued at the rate required by 29 U.S.C. Section 207(c)(1) at the wage rate required by 29 U.S.C. Section 207(c)(4) for all overtime workweek hours worked by those persons in any workweek ending after the date falling three years before the date on which this action is filed plus an additional equal amount in liquidated damages; Require the defendant to recompute the number of compensatory hours accrued by each present RMR I employee of the defendant at the rate and pursuant to the methods required by 29 U.S.C. Sections 207(c)(1), (2), (3), and Award plaintiffs a reasonable attorney's fee and the costs of this action; (1) Grant plaintiffs a jury trial on all issues related to the named plaintiffs? claims under the FLSA for overtime compensation in the form of wages; (1) Grant such other relief as is just and proper. Robert J. 113 1306 Hills orough Street Raleigh, North Carolina 27605 (919) 834-22003 Counsel for the Name Plaintiffs