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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

R.ALEXANDERACOSTA,
SECRETARY OF LABOR,
UNITED STATES DEPARTMENT
OF LABOR,

)
)
)
)

Plaintiff,

)

)

ORDER GRANTING
PRELIMINARY INJUNCTION

)
)
)

v.

MARIN J. CORPORATION

CIVIL ACTION No. 1: 18-CV-184-SNL

)
)

Defendant.

)

ORDER GRANTING PRELIMINARY INJUNCTION

The Court has reviewed the Agreed Motion for Entry of Preliminary Injunction, and for
good cause shown, IT IS ORDERED that the parties' Agreed Motion for Entry of Preliminary
Injunction is GRANTED.
Plaintiff R. Alexander Acosta, Secretary of Labor, United States Department of Labor (the
"Secretary") has applied, pursuant to Rule 65 of the Federal Rules of Civil Procedure, for a
preliminary injunction. The Secretary and Defendant Marin J. Corporation ("Defendant")
(collectively "the Parties") have stipulated and agreed to entry of a Preliminary Injunction on the
terms set forth below. Accordingly, it is hereby:

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ORDERED that a Preliminary Injunction be granted; and it is ORDERED effective

immediately that Defendant, its officers, agents, servants, and employees, and those persons in
active concert or participation with them who received actual notice of this Order are hereby
enjoined and restrained from violating the provisions of the H-2A program regulations at 20 C.F.R.
Part 655, Subpart B (the "H-2A Regulations") promulgated under the Immigration Reform and
Control Act of 1986 with respect to employees employed by Defendant under either Job Order
12484859 (27 Workers) or Job Order 12490128 (80 Workers) ("covered employees" or "covered
workers") in the following respects:
(1)

No later than Monday, August 6, 2018, at 8 p.m. CDT, Defendant shall house H2A visa holding workers, and any U.S. workers in corresponding employment for
whom housing must be provided, in housing that materially complies with the
requirements set forth in 20 C.F.R. § 655.122(d)(l)(i) for employer-provided
housing or§ 655.122(d)(ii) for rental and/or public accommodations, whichever is
applicable to the housing Defendant is providing.

(2)

Subject to the periods stated in Paragraph 1 above, Defendant shall not, for the
duration of the 2018 season, house H-2A workers in the former Dunklin County
jail located at 200 Slicer Street, Kennett, Missouri 63857 (the "Jail").

(3)

Subject to the periods stated in Paragraph 1 above, Defendant shall move H-2A
workers currently housed in the Jail to the 84 West Motel located at 1433 St. Francis
St., Kennett, Missouri 63857 ("84 West"), and shall make said housing available
for inspection by representatives of the Wage and Hour Division of the Department
of Labor at their reasonable request.

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(4)

Defendant shall provide each H-2A worker housed at 84 West an individual bed,
so that no such worker is required to sleep on the floor or share a bed with any other
individual.

(5)

Defendant shall provide each H-2A worker residing at 84 West with reasonable
weekly access to laundry facilities, and shall work out a reasonable means of
providing such access.

(6)

Defendant represents, by the date and time set forth in Paragraph 1 above, no
covered worker shall be housed at 9346 State Highway C, Kennett, Missouri (the
"Brick House"), unless before such occupancy Defendant has arranged to:
a)

Provide a clean, functional garbage dumpster, with lid, that is emptied upon
full, or at least twice a week;

b)

Ensure the kitchen is functional with operable appliances, at the proper
ratios identified in the H-2A Regulations;

c)

Ensure all windows are intact and fitted with a screen that is tightly-fitted
to the specific measurements of each window;

d)

Take measures to avoid insect infestation and animal habitation, including
maintaining grounds and open areas in clean and sanitary conditions,
patching and/or eliminating exterior holes in the house, and eliminating
existing insect and/or animal habitations; and

e)

Provide bathroom facilities free of leaks and in good repair, which are not
leaking or creating standing water and are capable of proper drainage.

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(7)

Defendant shall house no more than thirteen (13) H-2A workers in the Brick House,
in the following arrangements, unless the Parties have in advance of such
occupancy concluded that the discrepancies between the per room square footages
and applicable OSHA provisions would not material affect health or safety of
covered workers and that more covered workers can be housed in such housing:
Room No.
Square Footage
Permissible
Number ofH-2A
Workers
Total H-2A
Workers

(8)

1
324.61
6

2
141
2

3
186.12
3

4
130
2

13

Defendant represents, by the date and time set forth in Paragraph 1 above, no
covered worker shall be housed at 9348 State Highway C, Kennett, Missouri (the
"Wood Frame House"), unless before such occupancy Defendant has arranged to:
a)

Provide a clean, functional garbage dumpster, with lid, that is emptied upon
full, or at least twice a week;

b)

Ensure the kitchen is functional with operable appliances, at the proper
ratios identified in the H-2A Regulations, including a refrigerator capable
of sanitary storage of cold and frozen perishable items;

c)

Ensure all windows are intact and fitted with a screen that is tightly-fitted
to the specific measurements of each window;

d)

Provide bathroom facilities free of leaks and in good repair, which are not
leaking or creating standing water and are capable of proper drainage;

e)

Repair the flooring damaged by the leaking toilet, and remediate any
associated mold or fungal growth; and
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f)

Take measures to avoid insect infestation and animal habitation, including
maintaining grounds and open areas in clean and sanitary conditions,
patching and/or eliminating exterior holes in the house (including the hole
in the roof overhang), and eliminating existing insect and/or animal
habitations.

(9)

Defendant shall house no more than ten (10) H-2A worker in the Wood Frame
House, in the following arrangements, unless the Parties have in advance of such
occupancy concluded that the discrepancies between the per room square footages
and applicable OSHA provisions would not material affect health or safety of
covered workers and that more covered workers can be housed in such housing:
Room No.
Square Footage
Permissible
Number of H-2A
Workers
Total H-2A
Workers

(10)

1

2

3

262.8

213.6

61

5

4

1

10

For the purposes of this Order, if Defendant has elected to move all of its H-2A
workers from the Brick House and the Wood Frame House into the 84 West Motel,
or other DOL-approved accommodation, Paragraphs 6-9 of this Order will no
longer apply, unless and until any of Defendant' s H-2A workers return to either the
Brick House or the Wood Frame House.

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(11)

In accordance with the applicable Form 790 for Job Order 12490128, Defendant
has provided that "[t]he employer will provide three (3) meals per day: breakfast,
lunch and dinner. The employer will charge each workers [sic] $12.26 per day for
three (3) meals," and in such Job Order Defendant also provided that it would make
deductions from covered workers' individual pay if such workers agreed in writing
that such deductions may be made. For the period the H-2A workers covered by
Job Order 12490128 are in residence at 84 West Defendant may deduct 7 days of
meals at $12.26 per day, inclusive of breakfast, lunch, and dinner, from their weekly
pay. Defendant shall pay the person or entity providing the three (3) meals directly,
including any amounts over $12.26. The H-2A workers shall not be required to pay
any monies to any person or entity providing the three (3) meals, and shall only be
subject to the $12.26 deduction.

(12)

Subsequent to the entry of this Order, Defendant intends to provide additional
factual information concerning the ability of H-2A workers covered by Job Order
12490128 to have access to facilities sufficient to prepare their own meals. Upon
receipt, the Secretary will reevaluate whether he will allow Defendant to amend the
associated Job Order to allow H-2A workers a choice between preparing their own
meals, or having $12.26 per day deducted from their paychecks for the provision
of three (3) meals a day, inclusive of breakfast, lunch, and dinner.

(13)

In accordance with the applicable Form 790 for Job Order 12484859, Defendant
has provided that "[t]he employer will provide free and convenient cooking and
kitchen facilities to [such] workers living in employer provided housing, which will
enable workers to prepare their own meals. Employer will provide transportation

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(at no cost to employees) to grocery and/or department store, once per week for
workers to obtain food and other necessities." If 84 West can provide sufficient
rooms with free, sufficient, and convenient cooking and kitchen facilities so that
the twenty-seven (27) covered workers employed under such Job Order can prepare
their own meals, Defendant expects them to do so. If, however, Defendant amends
the applicable Form 790 for Job Order 12484859, covering twenty-seven (27) H2A workers, to disclose a deduction for $12.26 per day for three (3) meals, until the
conclusion of such Job Order, for the period the H-2A workers covered by Job
Order 12484859 are in residence at 84 West, Defendant may deduct 7 days of meals
at $12.26 per day, inclusive of breakfast, lunch, and dinner, from their weekly pay.
Defendant shall pay the person or entity providing the three (3) meals directly,
including any amounts over $12.26. In this case, the H-2A workers shall not be
required to pay any monies to any person or entity providing the three (3) meals,
and shall only be subject to the $12.26 deduction.
(14)

While disputing any contention that Defendant is not currently in material
compliance with such regulations, on or before Friday, August 10, Defendant shall
comply with the field sanitation standards as set forth in 29 C.F.R § 1928.110 in
each field where its H-2A workers covered by this Order are working, including
providing suitably cool potable drinking water that meets the needs of all such
workers present, as well as individual drinking cups and toilet and handwashing
facilities in the regulatory-defined ratios, properly located, stocked with toilet
paper, and cleaned and serviced.

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(15)

While disputing any contention that Defendant is not currently in material
compliance with such regulations, Defendant shall maintain accurate time and
payroll records of all hours worked by the H- 2A workers, and keep all such records
as are required under the H-2A Regulations, and no later than for the workweek
beginning August 13, 2018, provide to each H-2A worker a record and/or pay
statement, which includes their hours worked and associated rate of pay, as well as
other information required by the H-2A Regulations, on a weekly basis, for their
review, such pay receipts to be provided to covered workers to comply with the
material provisions of 20 C.F.R. § 655.122(k) including the following information:

(16)

a.

The worker's total earnings for the pay period;

b.

The worker's hourly rate and/or piece rate of pay;

c.

The hours of employment offered to the worker;

d.

The hours actually worked by the worker;

e.

An itemization of all deductions made from the worker's wages;

f.

If piece rates are used, the units produced daily;

g.

Beginning and ending dates of the pay period; and

h.

The employer's name, address, and FEIN.

Defendant shall pay all covered H-2A workers all wages owed on a weekly basis
as provided in the respective applicable Form 9142A Temporary Employment
Certifications issued pursuant to the respective applicable ETA 790 Job Order, the
Parties recognize that the existence of good faith disputes between the Parties as to

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whether time spent in particular activities is or is not compensable time will not be
considered a violation of this Order.
( 17)

Defendant, having represented it is not in present possession of all wage and time
related documents prepared by its supervisors and managers concerning the
covered workers, shall use its best efforts through its payroll service provider
Harbor America to obtain and provide a record of all wage payments, as well as the
associated per hour wage rate, made from June 25, 2018, until and through Monday,
August 6, 2018, to any covered H-2A worker under the respective Job Orders and
Form 9142A Temporary Employment Certifications to the Wage and Hour
Division of the Department of Labor through WHI Lindsey Corona at email:
Corona.Lindsey@dol.gov no later than Friday, August 10, 2018.

(18)

Defendant shall pay all covered H-2A workers any undisputed but unpaid wages
for work performed since June 22, 2018, through Sunday, July 29, 2018, on or
before Friday, August 10, 2018, and shall pay such workers undisputed wages for
work performed through Sunday, August 5, 2018, on or before Monday, August
13, 2018. Insofar as the Parties may disagree in good faith as to whether any
additional wages are due, their disagreement and subsequent resort to appropriate
judicial procedures to resolve fact and law disputes shall not be considered a
violation of this Order.

(19)

Defendant shall provide a roster of covered workers respectively under Form
9142A Temporary Employment Certifications H-300-18102-843410 and H-30018124-947696 to the Wage and Hour Division of the Department of Labor on or
before Friday, August 10, 2018.

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(20)

Defendant shall provide a roster of covered workers housed, under either Job Order,
at 84 West or in any other location, if any, to the Wage and Hour Division of the
Department of Labor through WHI Lindsey Corona at email address:
Corona.Lindsey@dol.gov no later than 5:00 p.m. C.D.T. Friday, August 10, 2018.

(21)

Defendant shall not threaten or coerce any covered H-2A worker into making
payments or kick-backs of any kind to itself, its agents, associates or employees, or
from exercising their rights to communicate fully and freely with Department of
Labor investigators without fear of retribution.

(22)

Within five (5) days of the entry of this Order, at a mutually convenient time and
place or places, Defendant shall permit a representative of the Secretary, in the
presence of Defendant, to read aloud, in both English and Spanish, and thereafter
provide a written copy to each employee, of this Order, as well as the following
statement:
You are protected by the H-2A visa statute and regulations and have the right to
participate freely in the U.S. Department of Labor's investigation into your
employer's pay practices. You have the right to speak freely with investigators or
other official from the Department of Labor. Your employer is prohibited from
retaliating against you in any way because you spoke with the Department of Labor.

(23)

Defendant shall provide notice to the Department of Labor through WHI Lindsey
Corona at email address: Corona.Lindsey@dol.gov within twenty-four (24) hours
of such action that it has terminated any covered H-2A worker.

Dated this 7~day of August, 2018.

Stephen N. Limbaugh, Jr.
United States District Court Judge

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