UTAH LEGAL SERVICES, INC.
P. Alex McBean, #10390
Attorneys for Plaintiffs
205 North 400 West
Salt Lake City, Utah 84103
Phone: (801) 924-3373
Fax: (801) 328-8898
amcbean@utahlegalservices.org
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
JOSE GUADALUPE AGUILAR
ESPINOZ, GABRIEL LEAL FRANCO,
BLAS AGUADO HERNANDEZ
COMPLAINT
Plaintiffs,
v.
Case No:
Judge:
CHERRY HILL FARMS, INC
Defendants.
PRELIMINARY STATEMENT
1. H-2A workers Plaintiffs Jose Guadalupe Aguilar Espinoz, Gabriel Leal Franco,
and Blas Aguando Hernandez bring this action for damages, declaratory relief, and
injunctive relief. This action is based on Defendant’s violation of Plaintiffs rights under
The Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (hereinafter “FLSA”), and on
Defendant’s breach of contract with Plaintiffs.
JURISDICTION
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2. Jurisdiction over Plaintiffs’ claims is conferred on this Court by 28 U.S.C. §
1331 (federal question), 29 U.S.C. § 1337 (interstate commerce), 29 U.S.C. § 216 (b)
(Fair Labor Standards Act), and 28 U.S.C. § 1367 (Supplemental Jurisdiction).
PARTIES
3. H-2A worker Plaintiffs bring this action against Defendant Cherry Hill Farms,
Inc. a corporation with its principal place of business in Santaquin Utah.
THE "H-2A PROGRAM": REGULATIONS
4. An employer in the United States may import temporary foreign workers ("H2A workers") if the U.S. Department of Labor ("US DOL") certifies that there are
insufficient U.S. workers to perform the job and that the employment of H-2A workers
will not adversely affect the wages and working conditions of U.S. workers who are
similarly employed. 8 U.S.C. § 110l(a)(15)(H)(ii)(a) and 1188(a)(l). These provisions,
along with the implementing federal regulations, are commonly referred to as the "H-2A
program."
FACTS
5. Cherry Hill Farms obtained H-2A temporary work visas from the United States
government so that it could import temporary foreign workers to work on its farm.
6. Plaintiffs commenced work on Defendant’s farms at various times in 2006,
2007, and 2008.
7. Defendant’s visa application and the statutes and regulations governing the H2A visa program created a work contract between Plaintiffs and Defendant which the
Plaintiffs accepted by coming to work for Defendant.
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8. The work contract between Plaintiffs and Defendants obligated Defendant to,
inter alia:
a. pay the workers, on a biweekly basis, the prevailing wage, the adverse
effect wage rate, or the federal or state minimum wage rate whichever is
highest;
b. pay for transportation and subsistence expenses to and from the
workers’ homes;
c. provide workers’ compensation insurance;
d. pay the three-quarters guarantee for the work period;
e. provide free housing;
d. comply with applicable federal, state, and local employment-related
laws and regulations.
9. Plaintiffs were not reimbursed for all of their transportation and subsistence
cost traveling to and from Mexico.
10. Plaintiffs paid attorneys fees to obtain H-2A visas in order to come work for
Defendant but Defendant did not reimburse them for this cost.
11. Plaintiffs paid passport and visa fees in order to come work for Defendant but
Defendant did not reimburse them for this cost.
12. Plaintiffs were charged rent for their housing provided by Defendant.
13. Plaintiffs were not paid the three quarters-guarantee when Defendant
terminated them before the expiration of their contracts.
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14. While working for Defendant, Plaintiffs were engaged in commerce or the
production of goods for commerce within the meaning of the FLSA, 29 U.S.C. § 206 (a).
15. At all times relevant herein, Defendant was an enterprise engaged in
commerce or the production of goods for commerce as those terms are used in 29 U.S.C.
Sec. 203 and were subject to the requirements of the Fair Labor Standards Act.
16. At all times relevant herein, Defendant “suffered or permitted” Plaintiffs to
work for it, and thus “employed” Plaintiffs within the meaning of the FLSA. 29 U.S.C. §
203 (g).
17. At all times relevant herein, Defendant was the Plaintiffs’ “employer” within
the meaning of the FLSA. 29 U.S.C. § 203 (d).
18. During their employment on Defendant’s farm, Plaintiffs did not receive at
least the statutorily mandated FLSA minimum wage for all hours that they worked.
19. Defendant’s failure to pay Plaintiffs at least the minimum wage for all of their
hours of work was willful.
I. Fair Labor Standards Act
20. The above facts constitute violations of the Fair Labor Standards Act by
Defendant for which Plaintiffs are entitled to relief pursuant to 29 U.S.C. § 216 (b).
II. Breach of Contract
21. The above facts constitute breach of contract by Defendant for which the
Plaintiffs are entitled to relief pursuant to the common law of Utah.
PRAYER FOR RELIEF
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WHEREFORE, Plaintiffs respectfully request that the Court grant them the following
relief:
a. Enter a declaratory judgment that Defendant violated their rights under the FLSA,
and breached their contracts, as set forth in the preceding paragraphs.
b. Award Plaintiffs their unpaid minimum wages, plus, an equal amount in
liquidated damages.
c. Award Plaintiffs their actual, incidental, and consequential damages resulting
from Defendant’s breach of contract;
d. Award Plaintiffs pre-judgment and post-judgment interest as allowed by law;
e. Award Plaintiffs their cost;
f. Award the recovery of their reasonable attorney’s fees for Edward Tuddenham;
and
g. Award and order such other relief as this Court deems just and proper.
_______s/P. Alex McBean__________
P. Alex McBean
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