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Scalia v. Munger Bros., LLC

United States District Court, E.D. California, Sacramento Division

November 19, 2019

EUGENE SCALIA, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
MUNGER BROS., LLC, a California company; CROWNE COLD STORAGE, LLC, a California company; SARBANAND FARMS, LLC, a Washington company, Defendants.

          WILLIAM M. WOOLMAN Attorney for Munger Bros., LLC, Crowne Cold Storage, LLC, and Sarbanand Farms, LLC

          BALDEV MUNGER On behalf of Munger Bros., LLC, Crowne Cold Storage, LLC, and Sarbanand Farms, LLC

          KATE S. O'SCANNLAIN Solicitor of Labor JANET M. HEROLD Regional Solicitor ANDREW SCHULTZ Senior Trial Attorney

          VERÓNICA MELÉNDEZ Trial Attorney Attorneys for Plaintiff, U.S. Secretary of Labor

          CONSENT JUDGMENT AND ORDER

          Troy L. Nunley S United States District Judge

         Plaintiff Eugene, United States Secretary of Labor, and Settling Defendants Munger Bros. LLC, Crowne Cold Storage, LLC, and Sarbanand Farms, LLC (collectively “Defendants”), have agreed to resolve the disputes between them in this civil action and consent to the entry of this Consent Judgment as provided below.

         STATEMENTS BY THE PARTIES

         A. The Secretary filed a complaint alleging that Defendants violated the Migrant and Seasonal Worker Protection Act (“MSPA”) and the H-2A Program under Section 218 of the Immigration and Nationality Act (“INA”) as amended by the Immigration and Reform Control Act of 1986 (“IRCA”).

         B. Defendants waive formal service and acknowledge receipt of a copy of the Secretary's Complaint.

         C. Defendants waive their answers and any defenses to the Secretary's Complaint.

         D. Defendants agree that the Court has jurisdiction over the parties and subject matter over this civil action and that venue lies in the United States District Court for the Eastern District of California, Sacramento Division.

         E. Defendants acknowledge that they and any of their officers, agents, servants, employees, successors, attorneys, and all persons in active concert or participation have notice of, and understand, the provisions of this Consent Judgment.

         JUDGMENT AND ORDER

         Therefore, upon motion of the attorneys for the Secretary, and for cause shown, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that judgment is entered in favor of the Secretary on his claims against Defendants.

         I. INJUNCTIVE RELIEF

         A. Debarment under the H-2A Program

         IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that, pursuant to 8 U.S.C. § 1188(g)(2) and 29 C.F.R. §§ 501.16(b) & (c), 501.20, Defendants, their officers, agents, servants, employees, successors, and all persons in active concert or participation are debarred from applying to the Department of Labor for any H-2A certifications for the period of three years effective from March 17, 2019.

         Defendants are also enjoined for three years from using the services of H-2A Labor Contractors[1] to acquire H-2A workers effective from March 17, 2019. For five years thereafter, when Defendants use the services of H-2A Labor Contractors, Defendants shall comply with 20 C.F.R. § 655.122(a), 655.135(d), and 655.153 and follow ¶¶ 22-24 below.

         B. Prohibitions on violating the H-2A Program

         IT IS FURTHER HEREBY ORDERED, ADJUDGED, AND DECREED that, pursuant to 8 U.S.C. § 1188(g)(2) and 29 C.F.R. §§ 501.16(b) & (c), Defendants, their officers, agents, servants, employees, successors, and all persons in active concert or participation are permanently enjoined and restrained from violating the H-2A program, including any of the following ways:

         1. Defendants shall not, contrary to 20 C.F.R. § 655.122(a), engage in preferential treatment towards H-2A workers. Defendants shall not fail to contact or hire all potentially qualified U.S. workers, including those previously hired through farm labor contractors (“FLCs”).

         2. Defendants shall not, contrary to 20 C.F.R. § 655.135(d), unlawfully reject U.S workers. Defendants shall not fail to hire or delay hiring qualified U.S. workers previously employed, including those previously hired through FLCs.

         3. Defendants shall not, contrary to 20 C.F.R. § 655.153, fail to contact and offer employment to all U.S. workers that worked for Defendants the previous year, including those hired through FLCs.

         4. Defendants shall not, contrary to 20 C.F.R. § 655.121(a)(3), fail to include all of the employment terms and working conditions on the job order, including the actual anticipated weekly hours.

         5. Defendants shall not, contrary to 20 C.F.R. § 655.122(q), fail to provide H-2A workers with a copy of the work contract or job order no later than the time at which the worker applies for the visa.

         6. Defendants shall not, contrary to 20 C.F.R. § 655.135(1), fail to post and maintain in a conspicuous place at the place of employment, a poster provided by the Secretary, the current version of which is available at https://www.dol.gov/whd/ag/agh-2a.htm.

         7. Defendants shall not, contrary to 20 C.F.R. § 655.122(1), fail to pay the required rate of pay, including time spent waiting for transportation to and from the job site, to the extent required by applicable State or Federal law.

         8. Defendants shall not, contrary to 20 C.F.R. § 655.122(i), fail to pay H-2A workers for at least three-fourths of the workdays of the total period beginning with the worker's first workday after arrival to the place of employment or the advertised contractual first date of need, whichever is later, and ending on the expiration date of the work contract. Defendants shall not fail to pay U.S. workers in corresponding employment at least three-fourths of the workdays as specified in this paragraph.

         9. Defendants shall not, contrary to 20 C.F.R. § 655.122(j), fail to keep accurate and adequate records with respect to workers' earnings.

         10. Defendants shall not, contrary to 20 C.F.R. § 655.122(k), fail to furnish workers with accurate hours (or units produced daily if paid piece rates) and earnings statements.

         11. Defendants shall not, contrary to 20 C.F.R. § 655.122(d), fail to provide or secure housing that complies with the applicable housing safety and health standards for H-2A workers and U.S. workers in corresponding employment.

         12. Defendants shall not, contrary to 20 C.F.R. § 655.122(h)(4), fail to provide transportation to the workers that complies with Federal, State, or local laws and regulations, and 29 U.S.C. § 1841 and 29 C.F.R. §§ 500.105, 500.120-128.

         13. Defendants shall not, contrary to 20 C.F.R. § 655.135(e), fail to comply with applicable Federal, State, and local laws and regulations.

         14. Defendants, jointly and severally, shall not continue to withhold payment of $2.5 million in back wages hereby found to be due for the Subject Period under the H-2A program to U.S. Workers and H-2A workers named in the attached Exhibit A.

         C. Prohibitions on violating the Migrant and Seasonal Agricultural Worker Protection Act

         IT IS FURTHER HEREBY ORDERED, ADJUDGED, AND DECREED that pursuant to Section 502 of the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”), 29 U.S.C. § 1852, Defendants, their officers, agents, servants, employees, successors, and all persons in active concert or participation with them are permanently enjoined and restrained from violating MSPA, including any of the following ways:

         15. Defendants shall not, contrary to MSPA §§ 201(a) and 301(a), 29 U.S.C. §§ 1821(a) and 1831(a), fail to disclose to all migrant and seasonal agricultural workers[2] who work for them information regarding their wages and working conditions, including rates of pay and location of work, as set forth in 29 C.F.R. §§ 500.75 and 500.76;

a. Defendants shall require all FLCs who furnish workers to them to provide Defendants with a written list of the disclosures the FLC has made to these workers at the time of recruitment as required ...

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