Nicholas Malfitano Apr. 20, 2016, 1:08pm


PHILADELPHIA – A U.S. magistrate judge has approved conditional certification of the settlement class and settlement associated with a Fair Labor Standards Act (FLSA) case brought by a group of seasonal landscape laborers from Mexico.

U.S. Magistrate Judge Elizabeth T. Hey issued her decision in the case initiated by Rogelio Ortega Hernandez and a group of laborers similarly situated, against Earth Care, Inc., Scott Risbon and Kim Risbon.

Ortega brought this action on behalf of himself and said laborers from Mexico who were employed by Earth Care from 2010 through 2014. Per the lawsuit, the defendants recruited and hired plaintiffs according to the requirements of the federal H-2B visa program, which “permits U.S. employers to recruit foreign workers to fill unskilled, non-agricultural positions when the employer demonstrates a shortage of available American workers.”

Ortega alleges the defendants failed to pay the workers in question the wage rates required by the H-2B program, while the defendants dispute the class allegations and deny having violated wage laws. Hey explained at an early point in the litigation, the parties initiated settlement discussions and arrived at an agreement, before the filing of an answer to the complaint and prior to any certification proceedings.

The suit is a collective action, meaning members must “opt-in” to participating in the litigation, and in order to have a collective action under the FLSA certified, “a plaintiff must produce some evidence, ‘beyond pure speculation,’ of a factual nexus between the manner in which the employer’s alleged policy affected [him] and the manner in which it affected other employees,” according to Hey.

“Based on the allegations in the Amended Complaint and those outlined in the proposed settlement agreement, I conclude that preliminary certification of the collective action is appropriate,” Hey said. “The 94 individuals in the proposed collective action/settlement class are similarly situated. Each of the class members was a seasonal H-2b employee of 4 Earth Care in 2013 and/or 2014. Based on the allegations, all were paid less than the minimum wage required by the H2-B visa program.”

Under those circumstances, Hey decided Hernandez “has established that the proposed members of the collective action/settlement class are similarly situated”, and granted conditional certification of the collective action.

The proposed settlement calls for payment of any shortfall for each worker, and for the payment of $440 per year as compensation for each of the class members, as a reimbursement for travel and visa costs for each year of employment with Earth Care.

As to approval of the settlement, Hey called such a decision “premature” since the exact number of plaintiffs opting in was not known. However, Hey said in considering factors associated with the settlement at this stage, she concluded “the settlement is fair to the workers and a reasonable compromise of their claims.”

“Based on my review of the pleadings and the motion, the agreement is the most expeditious, efficient, and fair means of resolving the claims,” Hey said.

Though Hey once again termed complete certification of the proposed settlement class and approval of the settlement agreement as “premature”, the judge did make a decision leaning in that decision.

“I will conditionally certify the collective action and settlement class. Additionally, because I conclude that the settlement is fair and reasonable, I will preliminarily approve the settlement,” Hey said.

“Once the period for submitting opt-in forms by the members who return to work for Earth Care has expired, the parties may seek final certification and approval. In doing so, counsel shall specifically address the relevant factors cited in this memorandum,” Hey concluded.

The plaintiffs are represented by Arthur N. Read and Stephanie Dorenbosch of Friends of Farmworkers, Inc., in Philadelphia.

The defendants are represented by Jonathan Landesman of Cohen Seglias Pallas Greenhall & Furman, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-05091

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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