Labor and Employment - Jerry C. Newsome and Angela Slate Rawls

• Publication year: 2003

Labor and Employmentby Jerry C. Newsome^* and

Angela Slate Rawls^**

The 2002 survey period offered an array of labor and employment cases in the United States Court of Appeals for the Eleventh Circuit, the United States District Courts, and the United States Supreme Court. This Article focuses on cases related to the Fair Labor Standards Act ("FLSA")¹ and the Family and Medical Leave Act ("FMLA").² Lawsuits alleging claims under both of these statutes have been on the rise in recent years.

I. The Fair Labor Standards Act

The Eleventh Circuit issued two opinions of note addressing issues under the FLSA, during the survey period.

A. Bailey v. Gulf Coast Transportation, Inc.

In Bailey v. Gulf Coast Transportation, Inc. ,³ the Court of Appeals for the Eleventh Circuit held that employees may seek preliminary equitable relief under the anti-retaliation provisions of the FLSA.⁴ The court reversed the ruling of the United States District Court for the Middle District of Florida.⁵ The district court had ruled that employees cannot seek equitable relief under the anti-retaliation provisions of the FLSA.⁶

John Bailey and other taxi-cab drivers were terminated shortly after filing a lawsuit against Gulf Coast Transportation ("Gulf Coast"), claiming a failure to pay minimum wage in violation of the FLSA. Plaintiffs filed a motion for a preliminary injunction seeking to reinstate drivers who were wrongfully terminated and to enjoin Gulf Coast from further retaliatory conduct. The district court acknowledged that the evidence supporting the substantive merits of the requested preliminary injunction was persuasive and stated that plaintiffs would be entitled to such relief if that relief were available to a private litigant under the FLSA. The district court, however, relied on the Eleventh Circuit's opinion in Powell v. Florida,¹ which states that "'the right to bring an action for injunctive relief under the Fair Labor Standards Act rests exclusively with the United States Secretary of Labor.'"⁸ Thus, the court denied plaintiffs' motion for a preliminary injunction.⁹

The Eleventh Circuit reversed the district court's order denying the drivers' motion for preliminary injunction.¹⁰ The court distinguished its opinion in Powell, stating that Powell addressed only whether an employee may obtain injunctive relief for violations of the FLSA's wage and overtime provisions, but the court did not address whether an employee may obtain injunctive relief for violations of the FLSA's anti-retaliation provision.¹¹

The Eleventh Circuit held that the remedies provided to employees for violations ofthe FLSA's anti-retaliation provision are broader than those available for violations of the wage and overtime provisions.¹² The court noted that the FLSA does not list equitable relief as an available remedy in an employee's suit for wage or overtime provisions but specifically provides for equitable relief in an anti-retaliation suit in 29 U.S.C. Sec. 215-216(b).¹³

Gulf Coast argued that 29 U.S.C. Sec. 216(b) should be read in conjunction with 29 U.S.C. Sec. 211 and Sec. 217.¹⁴ District court jurisdiction for injunctive proceedings in FLSA suits is provided by 29 U.S.C. Sec. 217, which states that except for child labor laws, the Administrator of the Wage and Hour Division has exclusive authority to bring suits for injunctive relief under Sec. 217.¹⁵ In addition, Gulf Coast argued that even if Sec. 216(b) does allow for injunctions, it should not allow preliminary injunctions because it provides that only an employer who "violates" the anti-retaliation provision is "liable" for equitable relief, suggesting the final adjudication of a lawsuit and a finding of liability.¹⁶

The FLSA anti-retaliation provision¹⁷ states that it is unlawful to "discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter."¹⁸ Section 216(b) of the FLSA also states that

any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.¹⁹

The Eleventh Circuit stated that "[t]he primary purpose of the anti[-] retaliation provision is to ensure that fear ofretaliation does not 'operate to induce aggrieved employees quietly to accept substandard condi-tions.'"²⁰ Based on this, the court concluded:

Employees may be much less likely to stand up for their substantive rights under the statute if they know that months or years will pass before a court can act to halt prohibited intimidation by their employer. When an employee has demonstrated a likelihood of success on the merits and satisfied the other requirements for preliminary injunctive relief, allowing for such relief to put the employee back in the position he held before the employer's retaliatory conduct is consistent with

Sec. 216(b)—it is a form of equitable relief that effectuates the purposes of the anti[-]retaliation provision.²¹

Accordingly, the court reversed the district court's order denying the motion for a preliminary injunction and remanded the case for further proceedings consistent with its opinion.²²

This case is significant because it provides additional incentive for employees to bring FLSA retaliation suits and represents an increased threat to employers who may be faced with injunctive relief, and the costs associated with injunctive relief, when defending FLSA suits. Moreover, the threat of injunctive relief lends the employee enhanced settlement leverage, particularly in a termination case, as the employer will almost always feel passionately that they do not want to rehire the employee. While the opinion in Bailey is limited to the FLSA, the case could have a farther reaching impact. The Age Discrimination in Employment Act ("ADEA"),²³ for example, is modeled after the FLSA and employs language similar to that relied on by the court in Bailey, found in 29 U.S.C. Sec. 216(b).²⁴ As a result of this opinion, preliminary injunctive relief may become more common under the ADEA as well.

B. Arriaga v. Florida Pacific Farms, L.L.C.

In another FLSA case, Arriaga v. Florida Pacific Farms, L.L.C.,²⁵ the Eleventh Circuit reversed the United States District Court for the Middle District ofFlorida and held that the FLSA requires employers to reimburse migrant workers for transportation and visa costs if the failure to do so pushes the workers' wages below the minimum wage.²⁶ Sleepy Creek Farms, Inc. and Florida Pacific Farms, L.L.C. ("Growers") applied for approval from the Department of Labor ("DoL") for admission of alien workers ("Workers") under H-2A²⁷ status to be employed during the 1998-1999 strawberry and raspberry seasons.²⁸

The H-2A regulations include several conditions for employing H-2A workers,²⁹ including the condition that the employer must compensate the H-2A workers at a rate not less than the federal minimum wage, the prevailing wage rate in the area, or the "adverse effect wage rate," whichever is highest.³⁰ In addition, an employer must pay all H-2A workers for inbound transportation and subsistence costs ifthe worker completes fifty percent of the contract work period unless the employer has previously done so.³¹ The DoL clearance orders submitted by the Growers offered transportation arrangements, including offers that any "worker who completed the first [fifty] percent of the contract period was entitled to reimbursement for the costs of his transportation to the jobsite 'from the place from which the worker has come to work for the employer.'"³²

To locate Mexican workers willing to accept the H-2A visas and to arrange for their transportation to Florida, the Growers used the services ofthe Florida Fruit and Vegetable Association ("FFVA"), which, in turn, utilized Florida East Coast Travel Service, Inc. ("Florida East Coast Travel") and Berthina Cervantes. Cervantes maintained an office in Monterrey, Mexico and assembled the group of workers using "contact persons" who directly contacted the workers. Unbeknownst to the Growers, FFVA, Florida East Coast Travel, and Cervantes, some of the contact persons charged the workers a referral fee.³³

As a result, some of the workers were required to pay the following amounts to Cervantes: $100 for the visa; $45 for the visa application fee; $130 for transportation ($20 bus fare from Monterrey to Laredo, Texas and $110 bus fare from Laredo to Florida); and $6 to the U.S. Immigration Service at the...