Questions Certified on Washington Farm Labor Contractor Law

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By Laura D. Francis

Aug. 5 — The Washington Supreme Court must decide the applicability of the state's farm labor contractor law to a class action involving former orchard workers before the appeal of a $1 million award can be decided, the U.S. Court of Appeals for the Ninth Circuit held Aug. 5.

The class of 722 former employees of NW Management & Realty Services claimed violations of the federal Migrant and Seasonal Agricultural Worker Protection Act as well as Washington's Farm Labor Contractor Act. They asserted that NWM failed to maintain a farm labor contractor's license and didn't make certain disclosures to the workers.

Although the district court determined that NWM was a farm labor contractor under the state law and that the orchard's owners and principal manager were jointly and severally liable, the Ninth Circuit said Washington's highest court is in the best position to answer the state law questions. “No published decision of either the Washington Supreme Court or the Washington appellate courts has interpreted the relevant provisions of this statute to date,” the federal appeals court said.

Therefore, the Ninth Circuit certified the following two questions to the Washington Supreme Court:

(1) Does the Washington Farm Labor Contractor Act, in particular Washington Revised Code § 19.30.010(2), include in the definition of a “farm labor contractor” an entity who is paid a per-acre fee to manage all aspects of farming—including hiring and employing agricultural workers as well as making all planting and harvesting decisions, subject to approval—for a particular plot of land owned by a third party?

(2) Does the FLCA, in particular Washington Revised Code § 19.30.200, make jointly and severally liable any person who uses the services of an unlicensed farm labor contractor without either inspecting the license issued by the director of the Department of Labor & Industries to the farm labor contractor or obtaining a representation from the director of the Department of Labor & Industries that the contractor is properly licensed, even if that person lacked knowledge that the farm labor contractor was unlicensed?

 

Orchard Management Subleased

According to the court, John Hancock Life & Health Insurance Co. and its parent, John Hancock Life Insurance Company, jointly owned the Yakima County, Wash., orchards with Texas Municipal Plans Consortium LLC. The orchards were leased to Farmland Management Services, which in turn subleased them to NWM to manage.

Farmland's agreement with NWM left management of the orchards substantially to NWM's discretion, although NWM was required to submit a budget each year. NWM unilaterally decided how many people to hire, whom to hire and when and whether to terminate individuals' employment.

NWM wasn't required to obtain any licenses, and never obtained a farm labor contractor license from the Washington Department of Labor and Industries, the court said.

The workers sued in December 2012, and the district court certified the class as to the Washington FLCA claims. All other claims were settled.

The workers argued that Hancock and Farmland are jointly and severally liable for the claimed FLCA violations because they used the services of an unlicensed farm labor contractor without inspecting NWM's license or asking the Washington Department of Labor and Industries whether the company was licensed.

Law's Applicability Questioned

Hancock and Farmland argued that the FLCA only applies to those who knowingly use the services of an unlicensed farm labor contractor, but the district court disagreed, finding that the law imposes an affirmative duty to check the contractor's license. Hancock and Farmland then argued that NWM wasn't a farm labor contractor under the law.

The district court again disagreed, granting summary judgment to the workers and awarding the class a total of $1,004,000. The lower court also held that the workers were entitled to attorneys' fees.

The defendants appealed to the Ninth Circuit, which decided to certify the state law questions to the Washington Supreme Court before proceeding.

Judge Sidney R. Thomas issued the order certifying the questions, while Judges Andrew J. Kleinfeld, Jacqueline H. Nguyen and Michelle T. Friedland are hearing the appeal.

Columbia Legal Services is representing the workers. Foster Pepper PLLC, Lee & Hayes and Stokes Lawrence Velikanje Moore & Shore are representing the defendants.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/ABELARDO_SAUCEDO_FELIPE_ACEVEDO_MENDOZA_JOSE_VILLA_MENDOZA_JAVIER.