18 17 and requirements for employees, particularly in the face of increasing mechanization; (8) the relationship of such factors as worker ability, employer attitudes, skill levels, and educational levels to the employment opportunities of such farm workers; (9) the means to familiarize farm workers with program benefits and basic civil rights, including voting, to help them participate more fully in the American economic and political mainstream; (10) the relationship between the institution of migrancy and the factors which cause it to overall poverty in the United States, and to relocation and resettlement programs and activities previously developed to more adequately overcome such problems. ANNUAL REPORT SEC. 604. The Council shall study, investigate, conduct 18 research, and prepare a report containing its findings and 19 recommendations concerning matters relating to the pur20 poses of this part, and shall transmit such report to the 21 Secretary, the President, and to the Congress no later than 22 October 1 of each year. (See text p. 40.) U.S. DEPARTMENT OF AGRICULTURE RESPONSE TO INTERROGATORIES OF MIGRATORY LABOR SUBCOMMITTEE I. DEMOGRAPHIC DATA Question 1: Do we know how many migratory farmworkers, and working and nonworking dependents and relatives, there are in this country? Answer: The 1969 hired farm working force survey shows that 257,000 persons did some migratory farmwork for cash wages during the year. This was 22,000 less than in 1968 and a continuation of the decline in the number of persons doing such work, which has been in process since 1965 (table 1). TABLE 1.-NUMBER OF DOMESTIC FARM WAGEWORKERS, DOMESTIC MIGRATORY FARM WAGEWORKERS, AND FOREIGN NATIONALS, 1949-69 Note: Above table from hearings before the Subcommittee on Migratory Labor of the Senate Labor and Public Welfare GOMEZ ET AL., PLAINTIFFS-APPELLANTS, v. FLORIDA STATE EMPLOYMENT SERVICE ET AL., DEFENDANTS-APPELLEES. No. 26719 UNITED STATES OF APPEALS FIFTH CIRCUIT Oct. 9, 1969. Action by migratory farm workers under the Wagner-Peyser Act. The United States District Court for the District of Florida, William O. Mehrtens, J., dismissed the complaint on grounds that it had no jurisdiction and that the com plaint failed to state claim for which relief could be granted, and appeal was taken The Court of Appeals, John R. Brown, Chief Judge, held, inter alia, that migratory farm workers who accept work through employment system set up by Wagner-Peyser Act and regulations promulgated pursuant thereto have rights and remedies for violations when they are deprived of protection and benefits of wages and working conditions promised by the Act and regulations by employers and state officials. Reversed and remanded. 1. Labor Relations-20 Migratory farm workers who accept work through employment system set up by Wagner-Peyser Act and regulations promulgated pursuant thereto have rights and remedies for violations when they are deprived of protection and benefits of wages and working conditions promised by the Act and regulations by employers and state officials. Wagner-Peyser National Employment System Act, § 1 et seq., 29 U.S.C.A. § 49 et seq. 2. Federal Civil Procedure-1793 Complaint by migratory farm workers against employer under Wagner-Peyser Act was adequate to resist motion to dismiss, as against employer's contention that even if there was a private civil remedy against state officials under the Act and regulations, there was no remedy against employer since neither regulations nor the Act imposes any duty on the employer, since it is working, living and transportation conditions of requesting employer which state agency is to check and certify, and if employment system is to be workable, the employer has a duty not to intentionally mislead state officials. Wagner-Peyser National Employment System Act, § 1 et seq., 29 U.S.C.A. § 49 et seq. 3. Labor Relations-20 Migratory workers had private cause of action against county sanitarian under Wagner-Peyser Act, as against contention that sanitarian did not participate in any way with state employment service, where complaint charged that sanitarian knew that migratory workers were being deprived of housing and working conditions to which they were entitled and that sanitarian sought to deprive them of means of obtaining redress for their grievances. Wagner-Peyser National Employment System Act, § 1 et seq., 29 U.S.C.A. § 49 et seq. 4. Labor Relations-20 Migratory workers who brought action under Wagner-Peyser Act stated a claim for which relief could be granted either against employer, against county sanitarian, or against employees of Florida State Employment Agency, where state action necessary under statute relating to civil action for deprivation of rights clearly existed as to all defendants. Wagner-Peyser National Employment System Act. § 1 et seq., 29 U.S.C.A. § 49 et seq.; 42 U.S.C.A. § 1983. 5. Civil Rights-13 Civil rights statute providing for civil action for deprivation of rights could be utilized by migrant workers who brought action under Wagner-Peyser Act so as to seek redress for denial of rights of an essentially personal nature, touching such things as living and eating conditions and work at starvation levels and in degrading poverty, as against contention that civil rights statute was not available since type of rights which plaintiffs alleged they were denied or deprived of were not those protected under such statute. Wagner-Peyser National Employment System Act. § 1 et seq. 29 U.S.C.A. § 49 et seq. ; 42 U.S.C.A. § 1983. 6. Courts-284 Statute relating to civil rights and elective franchise and its interplay with statute relating to civil action for deprivation of rights adequately supplied jurisdiction in suit by migratory workers under Wagner-Peyser Act, as against contention that requisite jurisdictional amount was not claimed. Wagner-Peyser National Employment System Act. § 1 et seq., 29 U.S.C.A. § 49 et seq.; 42 U.S.C.A. § 1983; 28 U.S.C.A. §§ 1331, 1343. 7. Courts-289 Court had jurisdiction of action by migratory farm workers based on Wagner-Peyser Act under statute providing that district court has original jurisdiction of any cause of action arising under a statute regulating interstate commerce. 28 U.S.C.A. § 1337. Kent Spriggs, Oxford, Miss., Joseph Segor, Miami, Fla., T. Michael Foster, Gerald Cassidy, Fort Myers, Fla., for appellants. Alan R. Schwartz, Miami, Fla., Robert M. Eisenberg, Charles P. Milford, Jr., Jacksonville, Fla., Patrick H. Mears, General Counsel, Tallahassee, Fla., James R. Parks, Miami, Fla., Sorokoty, Hagaman, Morrissey & Monaco, Ray A. Morrissey, Jr., Naples, Fla., for appellees Raymond Creel and Naples Farm, Inc.; Horton & Schwartz, Miami, Fla., of counsel. Before JOHN R. BROWN, Chief Judge, and Gewin and GOLDBERG, Circuit Judges. JOHN R. BROWN, Chief Judge: 1 2 Remarkable as it may seem in this litigation prone world, this is the premier case brought under a statute thirty-six years old. This case raises for the first time the question of whether under the Wagner-Peyser Act of 1933 and the regulations' promulgated by the Secretary of Labor pursuant to that Act migratory farm workers who accept work through the employment system set up by the Act and regulations have rights and remedies for violations. The question is whether these workers have rights and remedies under which they can get relief in Federal Courts when they are deprived of the protection and benefit of the wages and working conditions promised by the Act and regulations by employers and state officials-state officials charged with the protection of the workers' interest. Here the District Court dismissed the complaint on grounds that it had no jurisdiction and that the complaint failed to state a claim for which relief could be granted. We reverse and remand. The employment system involved here does not supply only agricultural workers but workers in all areas. It is an interstate system that operates through local, State-controlled offices that are subject to the regulations of the Secretary of Labor and that receive applications for work and workers and make a series of attempts in wider and wider areas to fill the applications." 1 The only reported litigation involving regulations under the Wagner-Peyser Act were suits against the Federal Government for breach of construction contracts where the employer was required either by the contract or the regulations of the War Manpower Commission to obtain labor from the U.S. Employment Service. Ottinger v. United States. 1952. 106 F. Supp. 198, 123 Ct. Cl. 23; Sanders v. United States, 1945, 60 F. Supp 483, 104 Ct. Cl. 1. Act of June 6, 1933, c. 49. 48 Stat. 113, 29 U.S.C.A. §§ 49 et seq. 320 C.F.R. 602.9. See note 5, infra. 4 See note 11 and accompanying text. 5 The regulations provide: "No order for recruitment of domestic agricultural workers shall be placed into interstate clearance unless : (a) The State agency has established, pursuant to recruitment efforts made in accordance with regulations, policies and procedures of the Bureau of Employment Security (U.S. Employment Service), that domestic agricultural workers are not available locally or within the State. (b) The State agency has compiled and examined data on the estimated crop acreage, yield and other production factors in accordance with procedures established by the Bureau of Employment Security (U.S. Employment Service) to assure the validity of need and the minimum number of agricultural workers required. (c) The State agency has ascertained that wages offered are not less than the wages prevailing in the area of employment among similarly employed domestic agricultural workers recruited within the State and not less than those prevailing in the area of employment among similarly employed domestic agricultural workers recruited outside the State. (e) The State agency has ascertained that the employer has offered to provide or pay for transportation for domestic agricultural workers (1) at terms not less favorable to the workers than those prevailing among the domestic agricultural workers in the area of employment recruited from the area of supply; or (2 in the absence of such prevailing practice in the area of employment, at terms not less favorable to the workers than those which prevail among the domestic agricultural workers recruited by out-of-state employers who recruit domestic agricultural workers from the area of supply, as determined by the State Agency in the State requested to supply the workers. (f) The State agency has ascertained that other terms and conditions of employment offered are not less favorable than those prevailing in the area of employment for domestic agricultural workers for similar work." 20 C.F.R. § 602.9. At the time this case arose the regulations regarding housing provided: "(d) The State agency has ascertained that housing and facilities: (1) Are available; (2) Are hygienic and adequate to the climatic conditions of the area of employment: (3) Are reasonably calculated to accommodate the agricultural workers sought; and (4) (i) Will not endanger the lives, health, or safety of workers. In making such determinations the State agency must ascertain that the housing and facilities con (See remainder of footnote at bottom of next page.) The system was established in 1933 when Congress passed the Wagner-Peyser Act, which established the United States Employment Service as a bureau of the Department of Labor. The Act's basic objective was to establish an interstate system for the recruiting and transfer of labor." The Act, quite obviously, was also intended to offer some protection to those employees who shift about the country to meet the needs of those employers who voluntarily use the resources of the federal government to secure workers.* These objectives were to be accomplished through that well-known device of "cooperative federalism", and grant-in-aid system. Under the particular system established by the Act, the state agencies, which are substantially funded by federal money and are subject to the regulations of the Secretary of Labor,10 process applications for workers and, after concentric local searches to fill the application, send the request through the interstate facilities of the United States Employment Service." Because of its information about the supply of labor in all parts of the country, the Service then is able to forward the application "Clearance Order"-to a state agency that can fill the request. In 1951, reflecting the growing national concern about the deplorable condition of many migratory Americans, usually Negroes or Mexican-Americans, who harvest the food for the nation's tables, the Secretary of Labor first promulgated referral standards for farm workers. (16 F.R. 9142). The standards, as those that followed," were obviously designed to protect those workers that were acquired when farmers voluntarily sought the benefits of this federal system. 13 But conditions of farm workers apparently remained much the same despite these and other efforts. Their plight was vividly described by the Secretary of Labor in his letter seeking the Attorney General's opinion on the Secretary's power to promulgate what became substantially the regulations in question here. The opinion referring to the Secretary's letter used these strong words: The "housing provided for migrant farm workers has frequently been overcrowded, unsanitary, lacking beds and bedding, unheated, and a fire hazard. Some migrants have even been required to sleep in the open, completely exposed to the elements.' These conditions 'breed disease and thus endanger the health of the whole community.' "The conditions were there summed up in the direct and equally pungent words of the report of a Presidential study commission: "Beyond wanting migrants to be available when needed and to be gone when not needed, they are expected to work under conditions no longer typi form to the standards prescribed by the President's Committee on Migratory Labor (copies of these standards are available at all offices of the U.S. Employment Service), and applicable State, county, and local housing and sanitary requirements. (ii) If an employer can show that he is taking adequate steps to come into compliance with the standards prescribed by the President's Committee on Migratory Labor a waiver until a date not later than Dec. 31, 1967, may be issued by the State agency. After Dec. 31, 1967, such waivers may be issued by the regional office of the Bureau of Employment Security, if the employer demonstrates that extenuating circumstances require more time." 32 F.R. 7701 (May 21, 1967). The current regulations provide: "(d) The State has ascertained that housing and facilities which comply with the provisions of pt. 620 of this chapter are available." 20 C.F.R. § 602.9 (d). See notes 19-24, infra. See statement of duties of the U.S. Employment Service. 29 U.S.C.A. § 49b. 7 See Migrant Farm Labor-Wagner-Peyser Act, 41 Op. A.G. 406, 409 (July 2, 1959). The structure reflects its genesis as legislation passed during the dark days of the economic depression of the 1930's and the early days of 1933 when Congress labored under a restricted conception of its power, a conception fostered by contemporary decisions such as A.L.A. Schechter Poultry Corp. v. United States, 1935, 295 U.S. 495, 55 S. Ct. 837, 70 L.ED. 1570; and Adair v. United States, 1908, 208 U.S. 161, 28 S. Ct. 277, 52 L.ED. 436, which limited congressional attempts to take direct action to improve the conditions of the American worker. See C. Swisher, American Constitutional Development 935 (2d ed. 1954); Brown, Free Will in the Frontiers of Federalism, 58 Mich. L. Rev. 999, 1019 (1960). See Brown, note 8, supra at 1016–19. 10 In order for States to participate in the Federal funds they must establish a state agency that meets the requirements of the act and regulations of the Secretary of Labor, 29 U.S.C.A. § 49c. 11 The attempt to fill the request is first made in the local labor market. If this attempt is unsuccessful, copies of the order are forwarded to surrounding public employment offices within the State. If these efforts also fail the request is sent to a regional office of the Federal Employment Service, and, finally, to Washington where the request is sent to other areas that have an excess supply of labor. 12 See note 5, supra. 13 See note 5, supra. 14 Attorney General's opinion, note 7, supra at 408. |