Villalobos v. North Carolina Growers Ass'n (252 F. Supp. 2d 1, 2002)

MEMORANDUM AND ORDER

GARCIA-GREGORY, District Judge.

Pending before the Court are defendants’ objections to Magistrate Judge Jus-to Arenas’ Report and Recommendation. (Docket No. 187.) The Magistrate Judge recommends that defendants’ motion for partial summary judgment be DENIED (Docket No. 115) and that co-plaintiff Jose Enrique Lugo’s claim for retaliation be DISMISSED. All parties previously have been furnished copies of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Section 636(b)(1), Title 28, United States Code.

The Court shall, therefore, make a de novo review of the Report and Recommendation. Upon consideration, of the Magistrate Judge’s extensive Report and Recommendation, all objections thereto filed by the parties and upon the Court’s independent examination of the record, the Court ADOPTS the Magistrate Judge’s Report and Recommendation and incorporates it by reference in this Order. Defendants’ motion for partial summary judgment be DENIED (Docket No. 115) and that co-plaintiff Jose Enrique Lugo’s claim for retaliation be DISMISSED.

IT IS SO ORDERED.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. Factual Background

This matter is before the court on a multifaceted and voluminous motion for partial summary judgment filed by defendants on June 30, 2000. (Docket No. 115.) The plaintiffs filed a response to the motion on August 21, 2000. (Docket No. 141.)

II. Legal Standard for Partial Summary Judgment

The standard for partial summary judgment is identical to that for summary judgment under Federal Rule of Civil Procedure 56(c). SCHS Assoc. v. Cuomo, 139 F.Supp.2d 238, 244 (D.R.I.2001). For the purposes of summary judgment, the moving party always has the initial burden of showing the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir.1995). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). See Celotex Corp., 477 U.S. at 323, 327, 106 S.Ct. 2548; Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.1996); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990).

The court must view the entire record, including the opposing party’s probative evidence, in the light most hospitable to the non-moving party, indulging all reasonable inferences in that party’s favor. United States v. One Parcel of Real Prop. With Bldgs., etc., 960 F.2d 200, 204 (1st Cir.1992); Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). If reasonable minds could differ as to the significance of the evidence, summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Boston Five Cents Sav. Bank v. Secretary Dep’t of Housing & Urban Dev., 768 F.2d 5, 8 (1st Cir.1985).

Subsequent to the moving party’s fulfillment of its initial showing, the burden shifts to the non-movant to establish the existence of at least one fact issue which is both “genuine” and “material.” Griggs-Ryan v. Smith, 904 F.2d at 115; Garside v. Osco Drug, Inc., 895 F.2d at 48. A factual dispute is “genuine,” and precludes the granting of summary judgment, if a reasonable trier of fact could resolve the disagreement in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; United States v. One Parcel of Real Prop. With Bldgs., etc., 960 F.2d at 204. A “material” fact is one which has the potential to change the outcome of the suit under the governing substantive law, if found favorable to the non-movant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; Martinez v. Colon, 54 F.3d 980, 984 (1st Cir.), cert. denied, 516 U.S. 987, 116 S.Ct. 515, IBS L.Ed.2d 423 (1995); United States v. One Parcel of Real Prop. With Bldg., etc., 960 F.2d at 204; Griggs-Ryan v. Smith, 904 F.2d at 115.

Where the non-moving party will bear at trial the burden of proof of such a “genuine” and “material” fact, it must, in its response, make a sufficient showing establishing the existence of a factual dispute requiring the trier of fact to resolve the parties’ differing versions of truth at trial. Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. 2548; First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); United States v. One Parcel of Real Prop. With Bldg., etc., 960 F.2d at 204. Failure to do so would mandate the entry of summary judgment. Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. 2548.

III. Application

A) Statute of Limitations

The Migrant and Seasonal Agricultural Workers Protection Act (hereinafter AWPA) itself does not provide for a statute of limitations. In such cases, the courts have traditionally deferred to the most analogous state statute and borrowed its corresponding limitations period. Barajas v. Bermudez, 43 F.3d 1251, 1255 (9th Cir.1994); Rivera v. Anaya, 726 F.2d 564, 567 (9th Cir.1984); Medrano v. D’Arrigo Bros. Co. of California, 125 F.Supp.2d 1163, 1168 (N.D.Cal.2000).

The defendants’ first ground for summary judgment is based on their contention that prior to plaintiffs’ filing of the complaint, the cause of action had prescribed. In particular, they argue that plaintiffs’ claims arising from the defendants’ allegedly misleading and/or false disclosures made during their recruitment period are governed by the three-year statute of limitations of article 1867 of the Puerto Rico Civil Code. 31 P.R. Laws Ann. § 5297(3), art. 1867. As an alternative to this proposition, plaintiffs suggest the application of article 1864 of the Puerto Rico Civil Code, which would allow for a fifteen-year statute of limitations for damages arising out of a breach of contract. 31 P.R. Laws Ann. § 5294, art. 1864.

Defendants’ argument is based on the proposition that the accrual of the three year-time limit should be counted from April 20, 1994, the day when the recruitment period ended. To support the applicability of article 1867, defendants cite Aponte Martinez v. Collazo, in as much as the article allows laborers to seek redress as to terms, conditions, and benefits. Aponte Martinez v. Collazo, 125 D.P.R. 610, 623, 1990 WL 710166 (1990). The argument omits any reference to the case’s holding that this section’s statute of limitations does not begin to accrue until the worker ceases to perform services for the employer. Id. at 622. In this case, plaintiffs did not arrive in North Carolina until April 19 and 20, 1994, and did not start to work until after these dates. Thus, even if this article applied, the statute of limitations would not have run until much later than April 20, 1997.

Plaintiffs’ alternative position — the application of article 1864’s statute of limitations — seems to gather support from the policy underlying the AWPA and from well-established jurisprudence. As to AWPA’s policy goals, Congress has made it clear that the driving motivations behind the enactment include the congressional recognition that “[b]ecause of [a] virtually insurmountable wall of economic, social, educational, language, and cultural barriers facing [most migrant and seasonal agricultural workers,] their reliance upon [the farm labor] contractor is extraordinarily heavy, and in many cases, total.” See Barajas v. Bermudez, 43 F.3d at 1253-54. It is imperative that AWPA’s provisions be construed broadly so that “the most abused of all workers in the United States,” who shift about the country to meet the professed needs of employers who voluntarily use the resources of the federal government, shall amply enjoy the Act’s intended humanitarian purposes. See id. at 1260 (citing to H.R.Rep. No. 97-885, at 2, 97th Cong., 2nd Sess. 16, reprinted in 1982 U.S.C.C.A.N. 4547, 4548 (1982)); Aguero v. Christopher, 481 F.Supp. 1272, 1275 (S.D.Tex.1980). See also Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1505 (11th Cir.1993). Court decisions thus embody the legislative recognition of the need to “reverse the historical pattern of abuse and exploitation of migrant and seasonal farm workers[.]” Castillo v. Case Farms of Ohio, Inc., 48 F.Supp.2d 670, 675 (W.D.Tex.1999) (citing to H.R.Rep. No. 97-885, at 3). The application of state law maximizes the efficacy of the Act’s enforcement and accounts for the itinerant reality of migrant workers’ existence, for the likelihood that they will be fearful, intimidated, or unable to assert their rights within a short time limit, for the potential lack of protection state laws may offer these workers, and for the significant language and cultural barriers that burden this increasingly Spanish-speaking labor pool and that are likely to increase the time that it takes them to find representation. See Barajas v. Bermudez, 43 F.3d at 1260; Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1332 (5th Cir.1985); Estados Unidos Mexicanos v. Decoster, 69 F.Supp.2d 168, 170 (D.Me. 1999).

Plaintiffs’ proposition concerning the applicability of article 1864 is amply supported by precedent. For instance, in Barajas v. Bermudez, 43 F.3d at 1259, the court found that the plaintiffs’ claims as to the defendants’ false and misleading disclosures of the wage rates and other terms and conditions of agricultural employment were most analogous to contract claims. In so doing, the court explicitly chose the longer of two potentially applicable statutes of limitations, finding that the application of the shorter time period would have been inconsistent with AWPA’s goal to both effectively deter and remedy any violations. Id. Similarly, the court in Sanchez v. Morrison held that Michigan’s six-year statute of limitation for breach of contract was applicable to plaintiffs’ AWPA claims. Sanchez v. Morrison, 667 F.Supp. 536, 537 (W.D.Mich.1987). Therein, the court specifically rejected the defendants’ argument that it should apply the three-year statute of limitations applicable to injuries to a person or property or for violations of the state minimum wage laws. Sanchez v. Morrison, 667 F.Supp. at 537. It additionally rejected the notion that, because employers need only keep records for three years to comply with their AWPA obligations, the limitations period should be set at three years. Id. at 538. Likewise, in Marquis v. United States Sugar Corp., the court found that — regardless of a defendant’s three-year obligation to keep records under AWPA — the plaintiffs’ AWPA claims should be governed by the state’s four-year statute of limitations on contracts and obligations. Marquis v. United States Sugar Corp., 652 F.Supp. 598, 602 (S.D.Fla.1987). Finally, in Sanchez v. Overmyer, the court rejected the application of the two-year statute of limitations of Ohio’s Portal-to-Portal Act, which generally applies to an employee’s actions for wages. Instead, it provided for the application of Ohio’s breach of contract statute of limitations. Sanchez v. Overmyer, 845 F.Supp. 1178, 1179 (N.D.Ohio 1993).

Defendants accurately maintain that, like Ohio, the Commonwealth of Puerto Rico has enacted legislation that generally applies to a laborer’s actions for wages and other employment related claims. See 31 P.R. Laws Ann. § 5297(3), art. 1867. While there is no indication that Congress intended the federal courts to adopt a uniform state law borrowing a source for AWPA actions, Barajas v. Bermudez, 43 F.3d at 1257, the defendants have not provided this court with any valuable reason not to follow the Overmyer court’s lead and apply instead Puerto Rico’s general breach of contract provision. Though clearly AWPA is a broad network of legal protection that may encompass more than one state law cause of action, Barajas v. Bermudez, 43 F.3d at 1258, application of the Commonwealth’s law must not effectively take away these workers’ rights nor render AWPA inaccessible and ineffectual. Nevertheless, regardless of which statute of limitations applies, plaintiffs’ complaint is not time-barred. It is therefore unnecessary to determine which of the plausible statute of limitations should apply. I therefore recommend that defendants’ motion for summary judgment based on the defense of limitations be DENIED.

B) Written Disclosures

AWPA’s section 1821 states that “each” “farm labor contractor, agricultural employer, and agricultural association” seeking to recruit any migrant farm worker shall ascertain and disclose certain required information “in writing,” accurately, intelligibly, and with particularity to “each such worker” at the time of recruitment. See 29 U.S.C. §§ 1821(a), (f), and (g). Cf. Washington v. Miller, 721 F.2d 797, 801 (11th Cir.1983) (discussing AWPA’s less stringent predecessor, the Farm Labor Contractor Registration Act (FLORA)). The Act’s legislative history unequivocally confirms the import of the statute’s plain meaning: that it was purposefully engineered to grant each and every worker an independent and individual right to receive a written ratification of all of the material terms and conditions of employment and to be intelligibly and comprehensively appraised of his or her prospective working arrangements. See H.R.Rep. No. 97-885, at 14, 15. See also Bueno v. Mattner, 829 F.2d 1380, 1384 (6th Cir.1987) (every individual worker is independently entitled to a written disclosure of the terms and conditions of employment). When undertaking the evaluation of a statute’s construction and appropriate interpretation, the starting point must be the language of the statute. See Brady v. Credit Recovery Co., 160 F.3d 64, 67 (1st Cir.1998). In general, statutes should be construed so that no word, clause, sentence, provision, or part is rendered superfluous, meaningless, void, or insignificant, if that result can be reasonably avoided. See Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); United States v. Rodriguez, 26 F.3d 4, 8 (1st Cir.1994); United States v. Fontana, 948 F.2d 796, 803 (1st Cir.1991). Courts should be particularly unwilling to treat statutory terms as surplusage when the term occupies a pivotal place in the statutory scheme. See Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995); see also Ratzlaf v. United States, 510 U.S. 135, 140, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994).

Therefore, these AWPA-required disclosures must necessarily include the place and period of employment, the wage rate, the kinds of crops and kinds of activities each worker would be employed to perform, the housing and transportation arrangements, and the existence of a workers’ compensation program or any other employment benefits. See 29 U.S.C. § 1821(a). Though the actual need for these full and comprehensible written disclosures may be greatest for those agricultural employees who are physically unable to verify the conditions of employment before accepting an offer and who must undertake their relocation in reliance of an employer’s representations, this right is imperative and unqualified. See H.R. Rep. No. 97-885, at 14.

Both the Act and its congressional record emphasize written disclosures as the only effective means of ensuring that agricultural employers will, to the greatest extent possible, provide each recruit with this information, before the worker actually undertakes his journey. See H.R.Rep. No. 97-885, at 14. To maximize the achievement of this humanitarian goal, the courts have required that farm labor contractors, agricultural employers, and agricultural associations disclose this information not only in a language in which the worker is fluent, 29 U.S.C. § 1821(g), but forthrightly and in a manner understandable to such workers. Cf. De La Fuente v. Stokely-Van Camp. Inc., 713 F.2d 225, 239 (7th Cir.1983) (disclosure, when pertinent, should be written in “understandable” Spanish); Alvarez v. Joan of Arc, Inc., 658 F.2d 1217, 1221 (7th Cir.1981) (FLCRA).

Accordingly, these disclosure requirements cannot be satisfied by simply publishing or disseminating varying, inaccurate, and/or confusing terms and conditions, leaving the worker to guess which terms are applicable and correct. Cf. Washington v. Miller, 721 F.2d at 801. Neither is there any authorization in the Act for the substitution of written disclosures with oral discussions or interrogations. Even a worker’s own purported agreement to waive this requirement shall be void as contrary to our Nation’s public policy and welfare. See 29 U.S.C. § 1856. In light of these non-discretionary specifications, a defendant’s decision not to comply with the “in written form” requirement as to each such worker would inexorably result in a violation of AWPA.

Defendants argue that “the record is dear and uncontroverted that ... NCGA made every effort to advise the workers about the terms and conditions of the [farm] jobs for which it was recruiting ....” and that therefore summary judgment is warranted as to what they allege was their full and proper compliance with all of AWPA’s written disclosure requirements. In supporting this argument, defendants direct the court to the NCGA-prepared Job Orders, their Attachments, the Work Rules, and the Agricultural Work Agreement. Defendants thus allege these documents were made available to all plaintiffs at the time of recruitment, and that they contained all the required information accurately, intelligibly, and with particularity.

As to the delivery of these documents, the evidence on the record belies defendants’ arguments. According to Puerto Rico Department of Labor staff members, only the first page of the Job Clearance Orders — -in English — was initially received. See Docket No. 115, Defendants’ Memorandum for Summary Judgment, deposition of Mateo Vélez Sánchez, at 23, ll. 16-25; deposition of Lizette Vélez Cordero, at 16, ll. 5-6, 13-14; at 49, ll. 22-23. See also Docket No. 141, Plaintiffs’ Opposition, Exhibit 5, deposition of Mateo Vélez Sánchez, at 33, ll;. 12-16; Exhibit 7, deposition of Lizette Vélez Cordero, at 27, ll. 21-25; at 28, ll. 1-6; at ll 29, ll. 5-10, 15-17; Exhibit 29, deposition of Alfredo Vargas, at 9, ll. 20-25 (stating that the job order was received from Puerto Rico Department of Labor’s central office in English and that the local office had to translate its contents to Spanish); Exhibit 26, deposition of Baudilio Polanco Acevedo, at 80 (stating that his Puerto Rico Department of Labor local office only received the first page of the job order). The job order’s terms and conditions of employment were not actually explained to the workers until after they had been “accepted” by the employer — and even then not by any of NCGA’s representatives, but rather by Puerto Rico Department of Labor staff. (Docket No. 141.) See Docket No. 115, Defendants’ Memorandum for Summary Judgment, deposition of Lizette Vélez Cordero, at 29, 11. 5-10, 15-17. It was also at this point — after they had already been hired by NCGA and were already well on their way to North Carolina — that the workers were exposed to Puerto Rico Department of Labor-prepared Spanish summaries of the job order’s first page and work rules. See Docket No. 115, Defendants’ Memorandum for Summary Judgment, deposition, of Mateo Vélez Sánchez, at 30, 11. 7-17 (initially, Puerto Rico Department of Labor local offices communicated the terms and conditions to the workers orally; only when they are about to leave the country did they provide them with a summary in writing and in Spanish of certain documents); deposition of William Tirado Calero, at 16, 11. 6-10 (stating that the “listing” workers were exposed to at the Aguadilla’s local office included only what the first page of the job offer contained); deposition of Alfredo Vargas, at 19,11. 23-25; at 21,11. 21-22; at 22, 11. 3-13 (stating that workers received a copy of the job order in English, as well as a summary in Spanish, which included information that they would work with “tobacco or cucumbers, hay and straw,” for the hourly rate of $5.38); deposition of Ramón E. Toro Martinez, at 16, 11. 10-12; at 22, 11. 14-16; at 25, 11. 19-25; at 39, 11. 12-15 (At the Puerto Rico Department of Labor’s Ponce local office, workers were handed a summary of the job order’s first page and the work rules in Spanish.). See also Docket No. 141, Plaintiffs’ Opposition, Exhibit 4, deposition of Eileen Ramírez Colón, at 33, I. 6 (stating that a summary of these documents, prepared by each local job services office, would have been “shown” to each farm workers); Exhibit 5, deposition of Mateo Vélez Sánchez, at 61, 11. 12-13; Exhibit 20, deposition of Manuel Aponte Rivera, at 12, 11. 22-25; at 13, 11. 1-2 (stating that he was only provided the work rules); Exhibit 26, deposition of Baudilio Polanco Acevedo, at 103,11. 14-21 (stating that workers were given a summary of the ;first page of the job offer); Exhibit 29, deposition of Alfredo Vargas, at 24 (where it is unclear from the transcript whether the workers received the Agricultural Work Agreement or the work rules). Even NCGA’s Stan Eury, Jr., admits that, prior to NCGA’s telephonic interview of plaintiffs, “the workers had not been exposed to the terms and conditions of the job.” Rather than immediately making any efforts to transmit any and all of the relevant information to the workers, as required of employers by 29 U.S.C. § 1821, following these interviews, NCGA contends that it attempted to delegate its responsibilities to the Puerto Rico Department of Labor, asking “that [the workers] be exposed to the terms and conditions.”

Yet, AWPA is clear in its language and 29 U.S.C. § 1821 does not impose any duties on the Puerto Rico Department of Labor. The defendants’ mere placing of the job offer in the clearance order system does not bestow on the Puerto Rico Department of Labor the kind of employment agency ability to recruit workers for a particular job offer that would allow it to contract without consulting NCGA. See Lopez-Rivas v. Donovan, 629 F.Supp. 564, 568 (D.P.R.1986) (absent express, official designation, placement of the job offer in the clearance system does not enable the employment agency to recruit workers for particular job offer without consulting the employer). Clearly, rather than performing delegated hiring functions, the Puerto Rico Department of Labor’s tasks encompassed little more than simple referral services. Defendants’ attempt to justify their inadequate business practices, therefore, is meritless.

(i) Written Disclosures: In a Language Common to Plaintiffs

In their summary judgment motion, defendants admit that it was the Puerto Rico Department of Labor, and not they, that made “the necessary translations of the Job Orders into Spanish.” Defendants, however, insist that, because “[t]he DOL regulations recognize the employer’s inability to know where the job orders will be sent in the interstate clearance system,” the regulations accordingly “impose the obligation on the local recruiting office to disclose the terms and conditions of the job orders in a known language to the workers.” Yet, this argument is irrelevant to defendants’ obligations under AWPA.

The clear language of AWPA’s 29 U.S.C. § 1821 does not impose any duties on Puerto Rico Department of Labor, but rather on each “farm labor contractor, agricultural employer, and agricultural association.” Additionally, notwithstanding “the difficulty that may arise in providing some workers who are not fluent in English with the information required under this section,” the Department of Labor’s failures, if any, shall not be the basis for a defense in an action brought against employers by migrant workers. Cf. H.R.Rep. No. 97-885, at 16.

Defendants contend that they fully complied with the Act’s provisions and regulations by transmitting to the Puerto Rico Department of Labor a copy of the job order’s first page, although it contained only incomplete information, was arguably not made available to all the Puerto Rico farm workers, and was not furnished in Spanish, “a language common” to plaintiffs, who were not fluent or literate in English. 29 U.S.C. § 1821(g).

Defendants thus reassert their already rejected “reasonableness” defense, Villalobos v. North Carolina Growers Ass’n, Inc., 42 F.Supp.2d 131, 138 (D.P.R.1999), in as much as they insist they had “no prior knowledge that their job order would be filed in Puerto Rico.” They reargue their already rejected claim that they cannot be held liable for the deficiencies in their own clearance orders.

Additionally, defendants argue that once they became aware that their job orders had been filed in Puerto Rico, they took “reasonable and necessary steps ... to ensure that the terms and conditions of the job orders were presented in writing, and orally, in Spanish, to plaintiffs at the time of recruitment and prior to their departure to North Carolina.”

In asserting this argument, the defendants are invoking language explicitly defined by AWPA’s legislative history on the question of translation. Namely, Congress determined that an agricultural employer should not be held hable for a violation of the Act by his failure to provide the necessary information in writing in a language which is only “the primary language of a small number of workers.” H.R.Rep. No. 97-885, at 16-17, 1982 U.S.C.C.A.N. at pp. 4562-68. The Congressional guidelines provided to measure an employer’s “reasonable and necessary” compliance regarding this issue include the number of workers involved, the frequency of hiring workers whose primary language is in question, the provision of language-specific forms by the Department of Labor, and the reasonable steps taken by the employer. See id.

Since this court rejected these same arguments in Villalobos v. North Carolina Growers Ass’n, Inc., 42 F.Supp.2d at 137-38, it has been furnished with no reason to depart from its earlier conclusions that there is ample evidence that the defendants knew or should have known that a significant amount of its workers would be native Spanish speakers, that their clearance order would likely make their way into Puerto Rico, and that simply submitting their clearance order to the Employment and Training Association (ETA) was not enough to satisfy the “reasonable and necessary” AWPA standard. Villalobos v. North Carolina Growers Ass’n, Inc., 42 F.Supp.2d at 137-38

In its 1999 Villalobos v. North Carolina Growers Ass’n, Inc. decision, the court stated:

We are unpersuaded by Defendants’ claims that they had no idea where their clearance orders were going to be sent. A recent Department of Labor report found that 78% of all farm workers in the United States are of Hispanic origin. It is implausible to believe that Defendants, agricultural contractors and- an agent and joint agricultural employer in North Carolina, had no idea that the recruited workers would be largely of Hispanic origin. Additionally, the ETA regulations specifically require that positive recruitment should be conducted in areas with “traditional or expected labor supply .... ” Puerto Rico is an area with a “traditional or expected labor supply” for agricultural workers.

Villalobos v. North Carolina Growers Ass’n, Inc., 42 F.Supp.2d at 137-38.

Similarly, as to the defendants’ insistence that their mere submission of the job offer to the ETA clearance system could have somehow relieved them of their AWPA responsibility, the court in Villalobos v. North Carolina Growers Ass’n, Inc. already addressed the fact that the ETA does not enforce AWPA and that the Act’s broad scope and purpose exceeds ETA’s limited mandate over employers hiring non-migratory foreign workers. Villalobos v. North Carolina Growers Ass’n, Inc., 42 F.Supp.2d at 137.

As to the availability of Spanish-language forms by the Department of Labor, the Department has created Form WH-516, which conveniently translates, side-by-side with the English version, each of the required AWPA information prongs. An agricultural labor contractor willing to comply with its AWPA obligations can readily avail himself of this resource. This form — of which defendants were otherwise aware and otherwise employed — could have easily been accurately completed and provided to the workers, but was not.

Additionally, the defendants maintain that they fully complied with 29 U.S.C.. § 1821 by “conducting] interviews in Spanish with recruited workers.” However, there is no evidence on record that tends to prove that during these interviews the defendants took any reasonable and necessary steps towards disclosing the terms and conditions of employment to the Puerto Rican recruits. To the contrary, the only transcripts of those interviews that the defendants have produced show that NCGA representatives limited themselves to testing the workers’ knowledge of the work rules, asking applicants whether they had checked other offers of employment, and inquiring whether they had worked with, or had any allergies to, tobacco.

Only once did one of NCGA’s representatives, Santos Orellana, make time to explain any contractual terms, i.e., the three-quarters guarantee and the fifty percent transportation procedure, to one of the workers, namely, Juan González Gauthier. More representative is the interview between Santos Orellana and Rafael Vélez, during which Mr. Orellana’s inquiries and explanations as to the necessary documentation a worker should have received consisted of the following: “Have you been given a sheet of paper where it says what type of work it is ... and this and this and this ... and a whole bunch ... of ...” (court’s translation), this just a few moments after Orellana had told plaintiff Vé-lez that his job was “to make sure that you understand the type of work that you come to perform here, how long the work will last, how much is fifty-percent ... because when you get here you say I was not told that ... I didn’t know that I came here ... do you understand?” (Court’s translation.)

While oral disclosures may undoubtedly supplement and enhance the recruitment process and the prospective.worker’s understanding and familiarization with the specific contractor’s employment policies and needs, there is no provision in the Act for the substitution of the delivery of written documentation with oral interviews. See Escobar v. Baker, 814 F.Supp. 1491, 1504-05 (W.D.Wash.1993). Moreover, even if such an alternative was permissible, the record shows that the exchanges undertaken during these interviews did not result in the disclosure of AWPA-required information.

The record does not even support a finding that the defendants ensured the transmission to all plaintiffs of a copy of the Agricultural Work Agreement in Spanish. This document, which is simply a catalogue list of terms, includes the possibility of work in any of about 35 different crops, 10 different paragraphs as to the possible tasks workers could expect, and about 25 different pay rates for different tasks and crops. Such disclosure could not meet the standards of accuracy, clarity, and specificity necessary to comply with AWPA.

In view of the above, I find that the defendants have not made a showing of reasonableness concerning their admitted failure to translate and their failure to transmit the Act’s required information in writing, accurately, intelligibly, with particularity, and in Spanish to plaintiffs at the time of recruitment. I therefore recommend that the motion for summary judgment by the defendants in relation to their compliance with this provision be DENIED.

(ii) Written Disclosures: Place of Employment

Title 29 U.S.C. § 1821(a)(1) clearly establishes that the defendants had the inescapable obligation to ascertain and disclose to each prospective migrant agricultural worker the place of employment at the time of recruitment. Defendants, however, allege that they were not required by AWPA or by federal regulation to disclose to each of the Puerto Rican migrant workers the name and location of the grower they would be assigned to. They contend that, because under 20 C.F.R. § 655.106(c), associations may be allowed to transfer workers hired pursuant to a temporary H-2A labor certification among its members, the defendants were exempt from their primary AWPA compliance. Yet, regardless of whether or not they were hired under a job order intended to solicit H-2A workers, plaintiffs’ rights as migrant workers and United States citizens cannot be waived or extinguished by any of their own or by any of the defendants’ actions. The pertinent federal regulations assert that “[wjritten agreements do not relieve any person of any responsibility that the person would otherwise have under the Act or these regulations.” 29 C.F.R. §§ 500.72(b). Therefore, regardless of NCGA’s intentions in filing the job order, the defendants’ desire to hire H-2A workers — rather than Puerto Rican United States citizens — would not relieve them of their obligations under AWPA. See 29 U.S.C. § 1856.

Alternatively, the defendants’ represent as an uncontested fact that they transmitted to plaintiffs an attachment to the job order “listing] the address and phone number for each farming operation to which workers could be referred.” There is, however, no evidence in the record as to the receipt by plaintiffs of any such document purportedly attached to these orders.

Finally, the defendants contend that the job order’s inclusion of NCGA’s post office box address and of the general statement that employment would be located in “various counties in N.C., U.S.A.” suffices to fulfill their AWPA obligations.. In its 1984 Opinion Letter No. 1577 (WH-524) interpreting AWPA, the United States Department of Labor underscored that the requirement to disclose the place of employment can only be fulfilled by providing information with as much specificity as possible. In terms of the name and address of the employer, this requirement refers to the actual grower employer and to the physical location of the place of employment — including the number, street, city or town, county, and state — not to a business address or a post office box. According to the Department of Labor, the purpose of these requirements is to appraise each individual worker, at the time of the offer, of all the material conditions of employment important to a worker’s meaningful decision as to whether to accept the offer.

In his deposition, Stan Eury recognizes that NCGA has tobacco-growing members in four different tobacco belts in North Carolina, the Old Belt, the Middle Belt, the Eastern Belt, and the Border Belt. According to published statistics by the North Carolina and United States Departments of Agriculture, these different tobacco belts have both different planting and harvesting dates. The actual physical location of employment could likely affect a worker’s decision to respond to a job order according to his dates of availability and his opportunity to enjoy work for a longer period of time.

Based on the Department of Labor’s long-standing and persuasive interpretation of 29 U.S.C. § 1821(a)(1) and 29 C.F.R. § 500.76(b)(1), I find that neither the mere inclusion of NCGA’s post office box address nor the general statement that employment would be located in “various counties in N.C., U.S.A.” could have met the required level of heightened specificity mandated by AWPA. Moreover, even if the list of grower members, specifying their names and addresses, had been transmitted to plaintiffs, defendants could not have satisfied the disclosure requirement by simply disseminating a directory of employers and then leaving the worker to guess which one he would be finally assigned to. See Washington v. Miller, 721 F.2d at 801. Disclosure to each recruit with as much specificity as possible is necessary to comply with this requirement. For those reasons, even in conjunction with the other documentation, none of the post office box address, the list, and the general statement cure the defendants’ violation of 29 U.S.C. § 1821(a)(1) and 29 C.F.R. § 500.76(b)(1).

In view of the above, I recommend that the motion for summary judgment in relation to written disclosures of place of employment be DENIED.

(iii) Written Disclosures: Wage Rates, Type of Crops, and Kinds of Activities

Defendants contend that they fully complied with their AWPA obligations to disclose — “in writing” accurately, intelligibly, with particularity, and in a language common to the plaintiff — the applicable and expected wage rate to “each such worker” at the time of recruitment. See 29 U.S.C. § 1821(a)(2). The pertinent federal regulation, however, provides that the precise wage rate need not be disclosed if it is not ascertainable within the recruitment period. See 29 C.F.R. § 500.75(b) (establishing both a good faith effort duty to ascertain wage rates and a duty to timely disclose them).

In such cases, it becomes the defendant’s burden to show that he was unable to determine the precise wage rate despite his good faith efforts to do so. Id.; Alex v. Jasper Wyman & Son, 682 F.Supp. 87, 89 (D.Me.1988). See also Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 908 (3rd Cir.1991) (FLSA) (good faith requires that employer have honest intention to ascertain and follow dictates of the Act; fact that employer has broken the law for long time without complaints from employees does not demonstrate requisite good faith) (quoting Williams v. Tri-County Growers, Inc., 747 F.2d 121, 129 (3rd Cir.1984)). Simply publishing a catalogue list of possible pay rates or disseminating varying, inaccurate, and/or confusing wage lists, which ultimately leave the worker to guess which terms are applicable and correct cannot suffice to establish good faith efforts, just as it cannot otherwise comply with AWPA. Cf. Washington v. Miller, 721 F.2d at 801. Rather AWPA requires full disclosure of wage terms in writing such that the workers are able to ascertain the rate at which they will be paid. See Escobar v. Baker, 814 F.Supp. at 1504.

Defendants argue that, to the extent that the job orders identified the wage rate of $5.38 per hour and that they “also explained that in certain crops workers would be paid a piece rate, but never less than $5.38 per hour,” their AWPA compliance is undisputed. Even assuming that plaintiffs had received any of the attachments to the job orders’ first page, the attachment to the clearance order, which was in English — not a language common to plaintiffs — listed over 25 different crops and over 30 specialized tasks with specialized pay rates. Precedent is clear that such multitudinous enumerations of possibilities do not meet the requirements of heightened specificity demanded by AWPA’s 29 U.S.C. § 1821(a)(2).

As to the disclosures actually contained in the job orders’ first page — or for that matter, in their Spanish-language substitutes, such as the summary or the Agricultural Work Agreement — , these were incomplete, inadequate, and otherwise incapable of satisfying defendants’ AWPA obligations to any of the plaintiffs, even for those who actually worked in tobacco and for those who had prior experience in tobacco. See De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d at 237 (affirming district court’s finding that workers did not have actual notice, as required under AWPA, from prior experience).

Based on their own admissions on the record, the defendants may not even assert in their defense that, despite their most diligent good faith efforts, the specific wage each worker could expect to receive was not ascertainable within the recruitment period. According to NCGA’s own Stan Eury, Jr., the data he, in his official capacity, used to fill out the job orders’ wage rate disclosures was obtained from the information provided to the association by each individual grower about the crops each grew and the applicable wage rates per crop and task. Defendant NCGA therefore had to know, at the time the job order was filed, the specific information applicable for each grower, for each crop, and for each task, as well as how many workers were needed by each member, yet inexcusably failed to adopt reasonable and effective business practices in order to comply with their simple AWPA obligations to each plaintiff.

Furthermore, given that the defendants’ stated dates of need were listed as March 30 and April 11, the defendants must have known before the workers’ April 19 and 20 arrivals which growers were cultivating which crops, what their needs for hand labor were, and thus the pay rate workers could expect. In failing to ascertain and disclose this information, NCGA disregarded plaintiffs’ obvious economic needs and their right to meaningfully and effectively choose where to work, in which crops, performing which tasks, and for whom.

Defendants, whose burden it is to establish their good faith effort to ascertain plaintiffs’ wage rates and to timely disclose them, have not carried their burden. In view of the above, I recommend that the motion for summary judgment in relation to compliance by the defendants with 29 U.S.C. § 1821(a)(2) be DENIED.

(iv) Written Disclosures: Periods of Employment

(I) Starting Date of Need

a. Job Order No. 7930794

The first page of job order No. 7930794 identified the anticipated starting dates of need as March 30, 1994 and April 11, 1994 and the ending date of need as November 1. Plaintiffs, as United States citizens entitled to particular protections under AWPA and the pertinent federal regulations, question whether or not NCGA’s stated dates of employment were in fact true and accurate for any of its members, in particular of any of those who grew the crops disclosed: tobacco, cucumbers, or hay and straw.

Plaintiffs’ challenge is partly based on the fact that published statistics by the North Carolina and United States Departments of Agriculture reveal that none of the planting dates for the different tobacco belts found in North Carolina coincides with NCGA’s March 30, 1994 stated date of employment. Moreover, except in one case, the defendants’ own admissions at their depositions sufficiently support plaintiffs’ contention that NCGA’s disclosure of these dates of agricultural need was false and misleading, in violation of 29 U.S.C. § 1821(a)(4) and 29 U.S.C. § 1821(f).

NCGA — through the deposition of its president Stan Eury, Jr. — alleges defendants’ compliance with AWPA based on the unsupported assertion that the Department of Labor purportedly allows NCGA to write in two different starting dates because it “doesn’t materially change the terms and conditions of the job order”. Yet, the report by the House of Representatives itself identified among AWPA’s driving forces the Committee’s “... doubt on the ability of the Department of Labor to adequately enforce the [Act’s] provisions[.]” Regardless of whether or not the Department of Labor, or any of its divisions, properly and effectively enforces any of the obligations of agricultural contractors and employers, AWPA provides that each and every farm labor contractor, employer and association which employs any migrant agricultural worker shall be responsible for the provision of the necessary information. 29 U.S.C. § 1821; see H.R.Rep. No. 97-885, at 14. Additionally, it has been explicitly established that no entity shall be permitted to insulate itself from such duty by hiring or delegating authority to an agent that communicates directly with the migrant workers. See H.R.Rep. No. 97-885, at 14. See also Leach v. Johnston, 812 F.Supp. 1198, 1210 (M.D.Fla.1992).

Furthermore, once employers and labor contractors have disclosed, to the best of their abilities, their true and expected starting date, along with a required disclosure of the date’s tentative nature, they are permitted to go without additionally specifying all of the possible contingencies that may affect the starting date. Cf. Al varez v. Joan of Arc. Inc., 658 F.2d at 1221. This obligation may be easily met by simply prefacing the date of need with the preposition “about” or by otherwise indicating that the dates are “tentative.” Id.

The first page of the job orders here in question, however, did not in any way indicate that the starting dates were tentative or contingent on any factors. Neither did it — or for that matter any of the other documents provided to the workers — specify employment opportunities by employer or specify each employer’s starting date of need. Yet, defendants have themselves admitted that different growers would have very different labor needs depending on the type of crop grown, the geographical part of the state, and the specific time of the year. Because the association’s members grew a wide diversity of crops with an equally diverse array of potential planting and harvesting dates for each crop, starting dates and the expected hours of work would necessarily affect a worker’s decision to respond to a job order according to his dates of availability and his opportunity to enjoy work for a longer period of time.

In terms of job order No. 7930794, the defendants’ motion for summary judgment as to disclosure of the period of employment “in writing,” accurately, intelligibly, and with particularity to “each such worker” at the time of recruitment should therefore be DENIED.

b. Job Order 7931086

The first page of job order No. 7931086 identified the anticipated starting date of need as June 13, 1994 and the ending date of need as November 1. Without offering any kind of supporting meteorological evidence, defendants’ contend that the June 13 date was changed to July 1, 1994 due to unusually cold weather conditions.

Plaintiffs, however, have offered sufficient evidence that, in 1994, the State of North Carolina experienced degrees in temperatures warmer or about the same as other.

Whether or not the defendants were justified in charging the starting date of employment and whether or not they violated 29 U.S.C. § 1822(c) is a genuine issue of material fact. I therefore recommend that the motion for summary judgment as to this issue be DENIED.

(2) Anticipated Hours of Work

As filled out by NCGA, the job order’s section 10 on anticipated hours of work specified that the workers could expect employment of 40 hours per week. Defendants never informed plaintiffs, either through documents or during the NCGA interviews, that there would be lengthy periods in which little or no work would be available, even though defendants admit that they knew, at the time of recruitment, that such periods were expected and needed to be disclosed.

On the contrary, the deposition of the Puerto Rico Department of Labor’s Mateo Vélez Sánchez supports the idea that workers were mislead into believing they could expect to work 160 hours a month NCGA’s alleged misrepresentation as to the quantity and frequency of work and as to the known possibility that work would become scarce or none existent at certain points during the season would have thus frustrated the statute’s intent to “ensure that workers [would] to the greatest possible extent have full information about ... what the conditions [would] be when they arrive[d].” See H.R.Rep. No. 97-885, at 14, 1982 U.S.C.C.A.N. at p. 4560.

Defendants’ alleged failure to disclose the anticipated hours of employment may have lead at least some plaintiffs to choose the NCGA clearance order over seemingly shorter job opportunities. Since AWPA requires, without exception, the written disclosure of this material term of the working arrangement, defendants’ disclosure was thus incomplete and inadequate, even as to those plaintiffs who had prior experience in tobacco. See De La Fuente v. Stokely-Van Camp. Inc., 713 F.2d at 237. Therefore, I recommend that the motion for summary judgment as to this issue be DENIED.

C) Disparate Treatment

The Immigration Reform and Control Act (1986) codifies certain aspects of the current H-2A (non-immigrant temporary foreign agricultural workers) scheme relevant to the present application of AWPA. See 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a), (b), and 1188. Under this statutory scheme, agricultural employers who anticipate temporary domestic labor shortages may petition the Attorney General for authorization to utilize non-immigrant temporary foreign agricultural workers. See 8 U.S.C. § 1188(a)(1); 20 C.F.R. § 655.101; Vega v. Nourse Farms, Inc., 62 F.Supp.2d 334, 335-38 (D.Mass. 1999) (for a thorough discussion of the H-2A program); see also Donaldson v. United States Dep’t. of Labor, 930 F.2d 339, 341-42 (4th Cir.1991) (discussing the H-2A program). Prior to the Attorney General’s approval, the employer must successfully apply to the Secretary of the United States Department of Labor for certification that (A) there are not sufficient domestic workers who are able, willing, and qualified, and who will be available at the time and place needed and (B) the employment of foreign workers will not adversely affect the wages and working conditions of United States workers similarly employed. See 20 C.F.R. § 655.90. Absent a showing of both preconditions, a certification shall not issue. See 8 U.S.C. § 1188(a)(1); 20 C.F.R. § 655.90(b)(2).

An agricultural employer must submit said application less than 60 days prior to the employer’s expected first day of need, along with a “job offer” that sets forth all the material terms and conditions of employment, including wages, working conditions, and benefits. See 20 C.F.R. §§ 655.100(a)(1), (b); § 655.101(b)(1); § 655.102. Pursuant to the Wagner-Peyser Act, 29 U.S.C. § 49 et seq., when the supply of local United States workers is insufficient, the employer’s job offer is used to recruit United States workers around the Nation through an interstate clearance system. See 20 C.F.R. § 655.101(c)(4). See also 20 C.F.R. §§ 652.1 et seq, (implementing the Wagner-Peyser Act) and §§ 653.500 et seq, (setting forth the requirements for acceptance and handling of intrastate and interstate job clearance orders seeking agricultural workers).

Though an employer’s recruitment efforts of United States workers need only extend until the date when the H-2A workers depart for the employer’s place of employment, agricultural, employers have certain obligations to United States citizen workers up until fifty percent of the work contract has elapsed. See 8 U.S.C. § 1188(b)(b); 20 C.F.R. § 655.103(e) and § 655.105. This obligation, known as the “fifty-percent rule,” requires that an employer provide employment to any qualified United States applicant until fifty percent of the contractual period of employment in which H-2A workers are utilized has elapsed. See 20 C.F.R. § 655.103(e); 8 U.S.C. § 1188(c)(2)(B)(i). If employment of United States workers results in the displacement of non-citizen H-2A workers, the employer is exonerated from his employment obligations to the displaced worker. See 8 U.S.C. § 1188(c) (2) (B) (6); 20 C.F.R. § 655.102(b)(6)(iv) and § 655.103(e).

An exception to the fifty-percent rule allows agricultural associations to “refer or transfer workers among its members,” if such referral does not result in the disparate treatment of United States workers. See 8 U.S.C. §§ 1188(c)(3)(B)(iv) and (v); 20 C.F.R. § 655.106(c). Clearly, an association’s choice to transfer or refer United States workers does not automatically violate the rights of United States citizens. However, this exception plainly allows for the transfer of H-2A workers — which may, on occasion, be particularly advisable so as to avoid the above mentioned disparate treatment of United States workers. Cf. Vega v. Nourse Farms, Inc., 62 F.Supp.2d at 337. A preference for the transfer of H-2A workers in order to avoid the detriment of United States citizens’ working conditions would be predicated on the pronouncement that the “obvious point” of this H-2A statutory and regulatory framework is to ensure the preferential treatment of United States workers over foreign labor. See Alfred L. Snapp & Son. Inc. v. Puerto Rico, ex rel, Barez, 458 U.S. 592, 596, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982).

At a minimum, the defendants — as AWPA agricultural employers — were bound required to provide to plaintiffs, and all other United States citizens, “no less than the same benefits, wages, and working conditions which the employer is offering, intends to offer, or will provide to H-2A workers.” See 20 C.F.R. § 655.102(a). With regards to the placement of United States workers for working assignments among an association’s grower member, plaintiffs have supported their disparate treatment claim on the Department of Labor’s determination that

in situations where employers are successful in recruiting foreign workers from the same communities or the same families in order to place them together at job sites in the U.S. and thereby promote a more stable and positive working environment fostered by mutual support and personal relationship of the foreign workers, failure to provide the same environment for U.S. workers would constitute disparate treatment under the law. Under such circumstances, associations would not be permitted to break up and disperse crews of U.S. workers among different employers.

In such situations, questions may arise as to a defendant’s intention to place foreign workers together at job sites in the United States and thereby promote a more stable and positive working environment. However, since under AWPA there is no requirement for specific intent, a defendant will be held liable for the natural consequences of his voluntary acts. De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d at 238 (under AWPA’s less stringent predecessor, FLORA); Rivera v. Adams Packing Ass’n. Inc., 707 F.2d 1278, 1283 (11th Cir.1983) (FLORA); Alvarez v. Longboy, 697 F.2d 1333, 1338 (9th Cir.1983); Alvarez v. Joan of Arc, 658 F.2d at 1224; Campbell v. Miller, 836 F.Supp. 827, 830 (M.D.Fla.1993); Howard v. Malcolm, 658 F.Supp. at 434-35; DeLeon v. Ramirez, 465 F.Supp. 698, 705 (S.D.N.Y.1979) (FLORA). See also Sanchez v. Overmyer, 845 F.Supp. at 1192 (if operating in violation of AWPA is a defendant’s normal business practice, violations are considered intentional); Stewart v. Everett, 804 F.Supp. 1494, 1497-98 (M.D.Fla.1992).

According to plaintiffs, the defendants had the prevailing business practice, regarding their temporary foreign workers from Mexico, of frequently assigning family and friends from the same community to live and work together. Plaintiffs, as United States citizens, would have been entitled to the same working arrangements ultimately provided to the non-immigrant foreign co-workers. See 20 C.F.R. § 655.102(a). Plaintiffs have presented sufficient evidence to substantiate their contention that the defendants knew about their obligations, that the defendant knew about plaintiffs’ desire to remain with family and friends from the same community of origin, and that the defendants had lead the Puerto Rico Department of Labor to believe that such requests would be honored.

For instance, on April 15,1994, five days before the arrival of the Puerto Rican workers, NCGA’s Stan Eury, received through fax transmission, a copy of Field Memorandum 42-94 from the United States Department of Labor ETA Regional Administrator Daniel Lowry. Had the defendant lacked knowledge of the law, this Department of Labor transmission would have unequivocally informed NCGA that “[United States] workers have the right to be referred to an employer who has sufficient job opportunities to accommodate the entire group when such an employer exists.” NCGA, however, deliberately disregarded the workers’ rights, as well as the Department of Labor’s mandate. Neither appears to have produced any effect upon the way in which NCGA assigned the Puerto Rican workers when they arrived. Instead, the defendants assumed the position that, since the Puerto Rican workers would reach North Carolina after the H-2A workers had arrived and been assigned, their rights could be relinquished and subordinated.

As early as April 19, 1994, in a letter to the United States Department of Labor, ETA Regional Administrator Daniel Lowry, Mr. Eury states:

As I am sure you are aware, the current work period covered by NCGA clearance order already is underway, and the H-2A workers are on site. Therefore, any U.S. workers who apply now — such as the Puerto Ricans scheduled to arrive this week — will be coming in under the ‘fifty-percent rule’ set forth at § 655.103(e).

Regardless of NCGA’s interpretation of the federal regulations, there is no evidence that any Puerto Rican worker arriving on April 19 and April 20, 1994 applied “after the time the foreign workers [had] departed] for the employer’s place of employment” such that they would come under the “fifty-percent rule.” (Emphasis added.) Without information as to the date on which each plaintiff applied for the job and without knowing the date on which the H-2A workers departed for each place of employment, the applicability of the “fifty-percent rule” is unascertainable. Unless the defendants can present credible evidence to support its relevance and application, there is no reason to entertain this issue. NCGA’s position regarding United States workers may very well prove “unreasonable,” “unwarranted,” and discriminatory, particularly given (1) the statutory and regulatory preference for United States workers, (2) the ultimate reality — whether purposefully or not — that defendants did provide their Mexican H-2A workers with accommodations reflecting their familial and community ties, and (3) the defendants’ obligation to provide United States citizens with “no less than the same benefits, wages, and working conditions which the employer is offering, intends to offer, or will provide to H-2A workers.” Defendants’ claim is particularly weak given plaintiffs’ sworn statements that at least two grower members had not yet received the H-2A workers when the plaintiff workers were distributed among NCGA members.

Plaintiffs have also predicated their disparate treatment claim on the Department of Labor’s interpretation of the defendants’ obligations under 20 C.F.R. § 655.102(a) and § 655.103(e):

If individual members of an association are able to absorb an entire crew of qualified and available U.S. workers without exceeding stated labor needs, failure on the part of the association to place the workers as a crew would be considered to be in contradiction with regulatory requirements concerning the hiring of U.S. workers. If the crew and its members wish to be placed as a group, and there are sufficient openings with one or more employer members of an association to accommodate group placement, the association would be required to place the entire crew with the appropriate employer. It would not be permissible to allow the association to break up the crew and offer to place the workers among several employers.

Unless the defendants can establish that their refusal to so assign United States workers as a crew was based either on the verifiable lack of qualifications of the available United States workers or on the verifiable fact that the association’s grower members were unable to comply with this mandate without exceeding their stated labor needs, failure to have done so “would constitute a violation of the labor certification and the job order[.]”

In view of the above, I recommend that the motion for summary judgment as to the issue of disparate treatment be DENIED.

D) Individual Claims

(i) Pesticide Exposure

Plaintiffs Roberto Christian, Heriberto Cruz Vega, Juan García Carrero, Wilfredo González, José González Gauthier, Manuel Vega Garcia, Edson Cupeles Rivera, and Luis Hernández Meléndez claim that they were exposed