Two farms in Washington state were found to be joint employers with a staffing provider in a discrimination lawsuit brought by the US Equal Employment Opportunity Commission. The Ninth Circuit Court of Appeals last week found the growers to be joint employers because they controlled working and living conditions in this case, even if they never used that authority.

Its Feb. 6 opinion reverses a district court ruling in favor of the farms, finding they weren’t responsible for the treatment of workers outside of their orchards.

The case involves Green Acres Farms and Valley Fruit Orchards, which hired staffing firm Global Horizons Inc. in 2003 to recruit workers from Thailand on H-2A visas to work in their orchards, according to court documents.

Capital Press reported Global Horizons had an $8.7 million judgment leveled against it in a related case. The two growers, on the other hand, were previously awarded $1 million in attorneys’ fees in this case by the district court, which the Ninth Circuit reversed last week.

Background. Two of the Thai workers filed discrimination charges with the EEOC in 2006 against the farms and Global Horizons, saying they were subjected to poor working conditions, substandard living conditions and unsafe transportation because of their race and national origin.

“Global Horizons sent recruiters to Thailand to lure potential workers with false promises of high wages and steady employment,” according to the Ninth Circuit’s opinion. “Global Horizons also charged the workers exorbitant recruitment fees for the opportunity to work in the United States.”

In the US, workers had to meet strict quotas and were verbally harassed by supervisors in the orchards, court records said. Global Horizons often delayed paying the workers or paid them too little. At times there was no work.

Outside of the orchards, Global Horizons, was responsible for providing transportation and housing to the workers, including either low- cost meals or a kitchen to use for cooking. But court records say the housing was overcrowded and nearly uninhabitable with infestations of mice, flies and cockroaches; sometimes it lacked running water.

Global Horizons also took advantage of workers’ crippling debts to keep them working, warning they could be sent back to Thailand, court documents said. In addition, the company confiscated workers’ passports and employed guards to prevent them from escaping.

The farms. This present case, however, focuses on the farms. Global Horizons was financially insolvent when EEOC brought the suit.

In its decision, the district court divided the workers’ allegations into that involved “orchard-related matters” such as working conditions at the orchards, and “non-orchard-related matters” involving housing, meals, transportation and wages.

“The district court then held that the EEOC had plausibly alleged the growers were joint employers of the Thai workers as to orchard-related matters, but not as to non-orchard-related matters,” according to court documents. “The court accordingly dismissed all allegations against the growers relating to non-orchard-related matters.”

In its ruling this month, the Ninth Circuit found growers and Global Horizons to be joint employers for both orchard and non-orchard matters.

It cited H-2A visa regulations that require employers to provide workers with housing, transportation and either low-priced meals or access to cooking facilities. It found the farms were responsible for these even if they did pay a third party to provide them.

“The contracts, it is true, delegated to Global Horizons responsibility for providing housing, access to cooking facilities, transportation, and wages for the Thai workers,” according to the opinion. “But that contractual delegation did not absolve the growers of their legal obligations as ‘employers’ under the H-2A regulations.”

Both farms were responsible even if they never exercised control over these matters, the court held.

In addition, Green Acre knew or should have known about the conditions the workers faced because some workers had complained to the farm, according to the opinion. It also noted the EEOC’s complaint does not adequately allege that Valley Fruit knew or should have known about the conduct of Global Horizons. However, it found the EEOC should have been allowed to amend its complaint with respect to non-orchard-related matters.

The case is US Equal Employment Opportunity Commission v. Global Horizons Inc., 16-35528.