Federal Court In N.Y. Grants Protective Order For H-2A Agricultural Workers And Issues Injunctive Order In Important Retaliation Case

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

FEDERAL COURT IN N.Y. GRANTS PROTECTIVE ORDER FOR H-2A AGRICULTURAL WORKERS AND ISSUES INJUNCTIVE ORDER IN IMPORTANT RETALIATION CASE
Immigrants' Rights Update, Vol. 18, No. 1, February 17, 2004

In an opinion that unequivocally upholds the antiretaliation protections afforded to workers who take steps to enforce their workplace rights, a federal court in New York has granted a group of agricultural workers a temporary restraining order against the former owner of the farm on which they worked.

The court found that the individual, Donald Perry, unlawfully retaliated against four agricultural workers after they filed a complaint against the farm under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA, also known as AWPA). In doing so, the court enjoined Perry from contacting any local, state, or federal government official or agency with regard to the four workers, and restrained and enjoined Perry from any further retaliation. Importantly, the court ruled that the antiretaliation provisions of both the FLSA and the MSAWPA applied to Perry, even though he himself was not the employer of the four workers.

The plaintiffs in the case are from Peru and entered the U.S. as nonimmigrant H-2A agricultural workers. They worked for and lived on Becker Farms during the summer and fall of 2001. Becker Farms is owned and operated by Oscar and Melinda Vizcarra, who are husband and wife. Ms. Vizcarra is the daughter of the defendant, Donald Perry. Perry formerly owned and operated Becker Farms and continues to live within the confines of the Becker Farms property.

On Nov. 2 or 3, 2001, the plaintiffs left the farm with all of their belongings and without informing anyone that they were leaving. About two days later, Mr. Vizcarra reported them missing to the Immigration and Naturalization Service. He told Perry that the workers had left the farm and that he had already called the INS. He also told Perry that the INS seemed reluctant to pursue the workers without having an address or location where they might be found. On Nov. 15, 2001, Perry himself called the INS to report that the workers had absconded. According to Perry, the INS again seemed reluctant to track them down.

On Nov. 28, 2001, the four workers filed a claim against Becker Farms and Oscar and Melinda Vizcarra under the FLSA, the MSAWPA, and other laws, alleging that they had not been paid for many hours of work they had performed and that they had not been paid overtime. The complaint was served on the Vizcarras that day.

When Perry found out about the suit a day or two later, he immediately went to an INS office and met with an agent. Perry once again reported that the workers had absconded, but this time he also stated that the plaintiffs are part of a Peruvian terrorist group's "sleeper cell" here in the United States. Prior to the filing of the workers' complaint, the court later noted in its decision, Perry never made any such allegation to anyone. The decision lists a sample of the various government agencies and officials Perry repeatedly contacted after the workers filed their complaint. They included the U.S. attorney general, the N.Y. state attorney general, the U.S. Dept. of Labor, the N.Y. State Police, the INS, the U.S. Dept. of Homeland Security, and the U.S. State Dept. Perry told these agencies not only that the plaintiffs are part of a terrorist sleeper cell, but also that they had been involved in trafficking and smuggling of other Peruvians who sympathize with their terrorist organization. Perry also reported the plaintiffs' attorney to officials, accusing the attorney of being involved in alien trafficking and smuggling.

During a court hearing, Perry admitted that he had no evidence that the plaintiffs are terrorists or members of a sleeper cell. The court found that his claims were unfounded, that he had known that they were baseless, and that he "asserted these sensational yet unsubstantiated claims to government authorities for the sole purpose of preventing or dissuading plaintiffs from pursuing the Becker Farms litigation."

The court found that the plaintiffs would suffer irreparable harm if the court did not issue a preliminary injunction enjoining Perry from continuing to retaliate against them. In doing so, the court stated, "Perry's retaliation negatively affects plaintiffs' ability to enforce their rights under the FLSA and MSAWPA. . . . Perry's retaliatory actions undermine the important purposes of the anti-retaliation provisions of FLSA and MSAWPA, and could potentially chill other migrant workers who might seek to enforce their rights."

The court then found that the plaintiffs also demonstrated a likelihood of success on the merits of their FLSA and MSAWPA claims. The court concluded that the plain language of the antiretaliation provisions of both statutes renders them applicable to any "person," and therefore the provisions do not just apply to employers. This finding was important because Perry was not the four workers' employer, despite his connections to the farm on which they had worked. In finding that the plaintiffs had demonstrated a likelihood of success on the merits of their case, the court also ruled that the workers had established a prima facie case of retaliation (i.e., a case sufficient on its face and supported by at least the requisite minimum of evidence).

Perry, who argued his case pro se (i.e., he represented himself), asserted a number of defenses, all of which the court found to have no merit. First, he argued that the plaintiffs were required to exhaust certain administrative remedies before bringing any litigation in federal court. The court, however, noted that Perry did not cite any authority for his claim, and that "[i]n fact there are many cases in which H-2A workers have filed wage cases in state or federal court without first going through an administrative process."

Perry also argued that the plaintiffs were collaterally estopped from pursuing their claim in federal court because the Office of the New York State Attorney General had already determined that Perry is not liable for retaliation. In rejecting this argument, the court first noted that the state attorney general's office had not, in fact, yet made such a determination. However, even if it had, such a determination would not have a collateral estoppel or preclusive effect on the case, the court held, because the legal issues are different: The state attorney general's office was investigating Perry for retaliation under New York labor law, whereas the plaintiffs were alleging retaliation under federal law. According to the court, "The difference in the laws enforced is critical because New York Labor Law applies only to employers and their agents . . . while the FLSA and MSAWPA anti-retaliation provisions apply to any 'person.'"

Finally, Perry had asserted that the injunction the plaintiffs sought would violate his First Amendment right to free speech. The court soundly rejected this claim. "The injunctive relief requested does not violate Perry's First Amendment right to engage in retaliatory conduct prohibited under the FLSA and the MSAWPA," it found. "Stated differently, Perry has no constitutional right to make baseless accusations against plaintiffs to government authorities for the sole purpose of retaliating against the plaintiffs for filing the Becker Farms litigation."

The court's decision is an important victory for immigrant workers who are often subjected to retaliatory actions for attempting to assert their workplace rights. The court's protective order provides advocates with another useful example of an order that helps protect the rights of plaintiffs who are in the middle of litigation. Finally, the injunction is important because it will help protect the plaintiffs from further retaliation as their case proceeds. Perry has appealed the decision to the Second Circuit Court of Appeals.

The plaintiffs were represented by Patricia C. Kakalec and Daniel Werner of the Farmworker Legal Services of New York, Inc., and by Nancy Jean Schivone of the Legal Aid Society of Mid-New York, Inc., in New Paltz, NY. Advocates interested in reading the briefs for this case may contact NILC's Anita Sinha at sinha@nilc.org.

Centeno-Bernuy, et al. v. Perry, No. 03-CV-457-A (W.D.N.Y. filed Dec. 18, 2003), 2003 U.S. Dist. LEXIS 23609.