GERMAN WILMER SAENZ MENCIA, Plaintiff Counterclaim Defendant - Appellant, and CIRO CAMAYO CANO, Plaintiff Counterclaim Defendant,
PHILLIP E. ALLRED; CHANCE ALLRED; DUSTIN ALLRED; PRESTON ALLRED, d/b/a Allred Land & Livestock, Defendants Counterclaim Plaintiffs - Appellees, and WESTERN RANGE ASSOCIATION, Defendant. COLORADO LEGAL SERVICES; CALIFORNIA RURAL LEGAL ASSISTANCE, INC.; UNITED STATES SECRETARY OF LABOR, Amici Curiae
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Appeal from the United States District Court for the District of Utah. (D.C. No. 2:11-CV-00200-CW).
Edward Tuddenham, New York, New York (Jaqualin Friend Peterson and Elizabeth Peck of Peck Peterson LLP, Salt Lake City, Utah, with him on the briefs), for Plaintiff Counterclaim Defendant-Appellant.
Judith D. Wolferts of Snow, Christensen & Martineau, Salt Lake City, Utah, for Defendants Counterclaimants-Appellees.
Jenifer C. Rodriguez and Dermot Lynch of Colorado Legal Services, Denver, Colorado; Cynthia Rice of California Rural Legal Assistance, Oakland, California, filed an amicus curiae brief for Colorado Legal Services and California Rural Legal Assistance.
Andrea Lindemann Gilliam (M. Patricia Smith, Solicitor of Labor; Jennifer S. Brand, Assistant Solicitor; Paul L. Frieden, Counsel for Appellate Litigation, with her on the brief), U.S. Department of Labor, Washington, D.C., for Amicus Curiae United States Secretary of Labor.
Before KELLY, McKAY, and PHILLIPS, Circuit Judges.
McKAY, Circuit Judge.
Mr. Saenz, a citizen of Peru, came to Utah to work for the Allreds' sheep ranch. His work was authorized by an H-2A sheepherding visa, and he was paid the minimum wage for H-2A sheepherders: $750 per month plus food and lodging.
He now claims this pay was inadequate. He argues the work he performed did not qualify as sheepherding and the monthly wage for sheepherders did not apply. Instead, he argues, he was entitled to the hourly wage for H-2A ranch hands, which he now seeks to recover in contract and quantum meruit. Additionally, he argues the work he performed did not qualify for the " range production of livestock" exemption to the Fair Labor Standards Act minimum wage, 29 U.S.C. § 213(a)(6)(E), and he therefore asserts a minimum wage claim against the Allreds under the FLSA.
The district court rejected these claims, denied Mr. Saenz's summary judgment motion, and granted summary judgment to the Allreds. Its decision rested on two independent grounds. First, it ruled that Mr. Saenz's claims were estopped because he did not object to his non-sheepherding work while the Allreds could have done something about it. Second, it ruled that more than half of Mr. Saenz's work qualified as " range production of livestock," and Mr. Saenz was accordingly exempt from the FLSA minimum wage and the H-2A wage for ranch hands.
Mr. Saenz now appeals. We review the summary judgment rulings de novo, see Day v. Bond, 500 F.3d 1127, 1131 (10th Cir. 2007), and we reverse.
We first address the key substantive question: was Mr. Saenz a sheepherder? In more precise terms, did his work fall within the H-2A definition of sheepherding and the FLSA's " range production of livestock" exemption?
Of the two, the " range production of livestock" exemption is better defined. The regulations governing this exemption ask three basic questions to determine whether an employee qualifies: (1) what are the employee's work duties, (2) where does the employee work, and (3) how much time does the employee spend doing non-qualifying work?
As to work duties, the FLSA regulations establish that exempt employees must be engaged in the " production of livestock." 29 C.F.R. § 780.324(a)(4). They define " production of livestock" to include " actively taking care of the animals or standing by in readiness for that purpose," as well as " immediately incidental duties [like] inspecting and repairing fences, wells, and windmills." Id. § 780.327. But not all production of livestock qualifies: an employee is exempt only if his " duty necessitates his constant attendance on the range, on a standby basis, for such periods of time so as to make the computation of hours worked extremely difficult." Id. § 780.329(a). Even if a worker is on the range, engaged in the production of livestock, he will not qualify for the exemption if the character
of his work allows easy recording of his hours. Hodgson v. Elk Garden Corp., 482 F.2d 529, 531 (4th Cir. 1973). The correct sort of work--the sort of work that makes hours difficult to calculate--is described as " constant surveillance of livestock that graze ...