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Worker Rights Disclosure Claim under § 1821(a)

Every agricultural employer must disclose in writing terms and conditions of employment at the time of the migrant workers’ recruitment. 29 U.S.C. § 1821(a). Plaintiffs argue that Defendants were required to provide each migrant worker with written terms and conditions at the time of recruitment. Defendants contend that their actions did not constitute recruitment because “recruit” is not synonymous with “employ” or “hire.

Neither MSAWPA nor binding precedent defines recruitment. Plaintiffs argue that “recruit” means “to hire or otherwise obtain or secure the services of,” and that this includes all pre-employment discussions that relate to a worker’s employment. Escobar v. Baker, 814 F.Supp. 1491, 1502 (W.D.Wash.1993) (citing Contreras v. Mt. Adams Orchard Corp., 744 F.Supp. 1007 (E.D.Wash.1990)). In Escobar, the plaintiff showed up at the farm looking for work after hearing of the opportunity from the farm foreman in an English class. Although summary judgment was denied because factual disputes remained regarding the exact detail of pre-employment discussions, the court found that indirect recruitment includes situations where the farm “puts out the word” that work is available and workers respond by showing up at a farm to work. Id. at 1503. Plaintiffs argue here that Defendants put out the word when Mr. Navarette called former workers in Mexico, talked to people at the grocery store, and ran employment advertisements on a local radio station in 2007.

Citing Elizondo v. Podgorniak, 70 F.Supp.2d 758, 776 (E.D.Mich.1999), Defendants contend that they did not recruit migrant workers. In Elizondo, the court found that employers had not recruited migrant workers because the plaintiffs sought employment from the defendants after hearing about the work from a third party at a local store. The court reasoned that third-party communications did not constitute “putting out the word” when the plaintiff showed up at the farm seeking employment after learning of available opportunities. According to Elizondo, Congress intended that written terms should be provided to recruits before the actual migration to the work site to ensure that workers have full information about where they are going and what the conditions will be when they arrive before they begin their journey. Id. (citing 1982 U.S.C.C.A.N. at 4560). Defendants argue that Plaintiff Coria was not recruited because he showed up and sought employment from Defendants after talking to Homero Mondragon, another farm employee, not because Defendants recruited him. Further, conversations between Plaintiff Coria and Mr. Mondragon were brief, merely communicating that “there was work,” not that Defendants sought employment or had put out the word.

Plaintiff Coria was not recruited under Baker or Elizondo. Both cases turn on whether a farm “puts out the word.” Plaintiff Coria showed up and sought employment from Defendants after talking to Mr. Mondragon. There is no evidence that Mr. Navarette or other farm employees put out the word through Mr. Mondragon. Further, while some unnamed class members may have been recruited, remaining factual disputes make this determination difficult. For example, while Mr. Navarette stated that he called Mr. Mondragon in Mexico to find out if he and his family were coming to work for the 2006 harvest, he also stated that the Mondragons come from Mexico every year to work harvests for Defendants and other farms. Therefore, this phone call does not clearly establish that Mr. Navarette  recruited the Mondragons. In addition, Defendants dispute Plaintiffs’ claim that employees were recruited through employment advertisements on the radio. Plaintiffs have not established that any employees recruited through radio advertisements were migrant workers that lived in the Defendants’ housing. Given these factual disputes, Plaintiffs’ motion for summary judgment on this issue is denied.