As an employer’s, i.e. a defendant’s attorney, I just want to win the case and I don’t care how (within ethical parameters, naturally). Not too often, however, can an employer argue that the workers who are suing are not even covered by the Fair Labor Standards Act. In a recent case, an employer was able to do just that because it successfully argued that the suing workers were engaged in “agriculture,” which is an exempt industry under the FLSA. The case is entitled (Barks v. Silver Bait, LLC and was decided by the Sixth Circuit Court of Appeals.
The suing workers were employed at a Tennessee facility that raises worms to sell for bait. The Sixth Circuit concluded (affirming the lower court) that the FLSA definition of agriculture was meant broadly to reach “farming in all its branches” and applied to this sizeable company which cultivated worms for sale to retailers. Although “worm farming” was not agriculture in a traditional sense, the Court (as other courts) held that the definition is intended to evolve and that the “ordinary meaning” of farming applied to the “entire field of farming.”
The Court examined the FLSA definitions of “farming” and had some difficulty categorizing the activity. The Court looked at the covered commodities (e.g. milk, wool, eggs, honey) and stated that “the list of included and excluded commodities is instructive in that worms are more like the included cultivated commodities than the excluded wild ones.” The Court also noted that raising worms was not “expressly exempt” under any FLSA example. The Court then examined the scope of the “unlisted” farming activities and concluded that the raising of bait worms “has much in common with traditional farms.” It shared “the same basic purpose” as traditional farms, to raise animals for sale as commodities.”
The Court finally observed that “although not a specifically enumerated farming activity, there is little to distinguish Silver Bait from a traditional farm other than the unfamiliarity of worm farming.” Thus, the Court found that the growing and raising of worms is a form of farming within the FLSA’s agricultural exemption.
A win is a win. The lesson here is always to look at issues like jurisdiction or statute of limitations or some other perhaps, purely procedural, hyper-technical (dare I say gimmicky?) way to win the case especially in its early stages. i.e. motion to dismiss, summary judgment motion. Here, the defendant convinced the court to stretch the meaning of the word “farming” as defined under the FLSA by arguing that the meaning of farming was not frozen in time and had changed with the times.
As does the need/desire to find creative ways out of a case…