Alfaro-Huitron v. Cervantes Agribusiness

Facts

Dino Cervantes, managing vice president of D, signed a one-page 'Agreement of Outsourcing Support' with labor contractor WKI Outsourcing Solutions, LLC (WKI). The president of WKI, Jaime Campos, promoted his company to D and other agricultural businesses as a legal source of foreign labor through the H-2A work visa program. D and WKI signed a one-page 'Agreement of Outsourcing Support.' WKI agreed to 'provide 15 farm workers on a daily basis for the length of this agreement.' The H-2A visa program allows domestic employers to hire nonimmigrant foreign workers for agricultural labor on a temporary or seasonal basis. To obtain permission to hire workers under the program, an employer must establish that it faces a shortage of qualified United States workers and that the employment of foreign labor will not adversely affect the wages and working conditions of similarly employed United States agricultural workers. DOL regulations require employers to 'first offer the job to workers in the United States.' The employer must offer domestic workers 'no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers. WKI must submit, among other required documents, 'copies of the fully-executed work contracts with each fixed-site agricultural business' to which the contractor expects to provide H-2A workers. WKI must submit, among other required documents, 'copies of the fully-executed work contracts with each fixed-site agricultural business' to which the contractor expects to provide H-2A workers. 20 C.F.R. § 655.132(b)(4). Dino Cervantes testified that he knew when he executed the Agreement that WKI would use the Agreement as part of the H-2A application process and that Cervantes would need to pay the AEWR (adverse-effect wage rate) to H-2A workers. WKI applied for H-2A certification. WKI certified that to the best of its knowledge, there are not sufficient workers who are able, willing, or available at the time and place needed to perform the farm labor and services required by . . . farmers [of certain seasonal crops,' workers would be paid the AEWR wage of $9.71 per hour (more than both New Mexico's minimum hourly wage ($7.50) and the federal minimum hourly wage ($7.25) at the time), and qualified United States workers would have priority in hiring, in compliance with federal regulations on the subject. WKI got approved and began working with the relevant state workforce agencies, including the Texas Workforce Commission (TWC), to recruit United States workers for the available positions described in the clearance order. Numerous United States workers expressed interest in WKI's job listings. WKI hired Ps, all of whom were 'United States workers' under the H-2A regulations. All the people who contracted with WKI wanted workers from Mexico. They began terminating their work agreements with WKI because all WKI could supply were U.S. workers. WKI informed DOL that 'the agricultural producers that WKI has contracted with . . . have informed WKI that due to severe drought conditions . . . , there is no work to be performed at this time.' This was a lie. DOL granted WKI's request to cancel its H-2A application because of contract impossibility. Neither D nor WKI provided work to Ps during the time period for which Plaintiffs were hired under the terms of the H-2A contract. Ps filed suit for breach of their employment contracts, violations of the AWPA under 29 U.S.C. §§ 1811, 1821, common-law fraud, and civil conspiracy. All defendants except D have either settled or defaulted, or they were otherwise dismissed. D moved for summary judgment on all claims. Eventually it was granted. Ps appealed.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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