According to the
Court’s opinion, the employer imports
from Europe several one-ton truckloads of baby worms every year, feeds and
raises them, and then annually sells approximately 21 tons of bait worms once
they are large enough to package and sell.
During an isolated four-week period, the employer received, packaged and
sold adult bait worms and this was found to be non-exempt wholesaling activity
by the Department of Labor because they did not feed or raise the worms which
were sold. However, that period was not
the subject of the litigation. The plaintiffs filed suit seeking unpaid
overtime compensation.
The FLSA exempts “employees
employed in agriculture.” The Act
defines agriculture as follows:
“Agriculture”
includes farming in all its branches and among other things includes the
cultivation and tillage of the soil, dairying, the production, cultivation,
growing, and harvesting of any agricultural or horticultural commodities
(including commodities defined as agricultural commodities in section 1141j(g)
of Title 12), the raising of livestock, bees, fur-bearing animals, or poultry,
and any practices (including any forestry or lumbering operations) performed by
a farmer or on a farm as an incident to or in conjunction with such farming
operations, including preparation for market, delivery to storage or to market
or to carriers for transportation to market.
29 U.S.C. § 203(f). Unlike statutory exemptions,
the FLSA definitions section is not subject to a narrow construction. Accordingly, the Supreme Court held in 1955
that this “embraces the whole field of agriculture” and later described the
agricultural exemption as “far-reaching.” The
definition includes primary agricultural activities, such as growing, feeding, harvesting,
etc., and also secondary agricultural activities, such as storage, delivery,
market preparation, etc.
The parties
agreed that the defendant employer was in the business of growing and raising
worms. The plaintiffs unsuccessfully
attempted to argue that worms are not like livestock, poultry or fish, and
should not be considered an agricultural commodity. However, while “raising
worms is not a traditional subject of agriculture [it] still falls within the
margins of the term’s ordinary meaning as involving the production of animals
useful to man and the preparation of products for man’s use.” Worms would superficially appear to be an
agricultural commodity, but the FLSA regulations exclude activities related to
certain naturally occurring commodities, such as “the gathering or harvesting of
wild commodities such as mosses, wild rice, burls and laurel plants, the
trapping of wild animals, or the appropriation of minerals and other
uncultivated products from the soil.” 29 C.F.R. § 780.114. While Christmas trees, and pine moss are an
agricultural commodity covered by the FLSA exemption, peat moss is not. Bees are expressly covered, but worms are
never mentioned in the statute or the regulation. Thus, gathering wild worms to sell for fish
bait might arguably not be an agricultural commodity, but raising imported baby
worms would seem to be covered.
The Court ultimately relied on the common sense and
traditional meaning of farming to find raising worms to be a covered
agricultural activity. While the worms
were being raised for fish bait instead of for human consumption, that distinction
was immaterial. Lots of produce is raised
to feed livestock instead of people and that does not affect its
characterization as agricultural.
Moreover, the worms were being raised on a traditional (yet industrial)
farm. The employer “houses the worms,
feeds them, monitors their growth, and eventually harvests them.”
NOTICE: This summary is designed merely to inform and alert you
of recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to
different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
