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Some say it’s the most significant minimum-wage ruling in the past 20 years. Others say it’s a horror that will devastate farmers and businesses. But both sides agree that the Sept. 11 ruling in Arriaga v. Florida-Pacific Farms, 305 F.3d 1228 (11th Cir.), is a major reinterpretation of a long-established federal statue and that, as a result, low-wage workers are now entitled to receive extra pay worth millions — perhaps hundreds of millions — each year. All this was brought about by the pro bono efforts of a handful of attorneys at Washington D.C.-based Wilmer, Cutler & Pickering. Within six months, they took what was a decisive loss in federal district court and turned it on its head. The team’s leader was partner A. Stephen Hut Jr., who chairs Wilmer’s pro bono program. The point people on this matter were Thomas Page, an associate, and Robin Lenhardt, an of counsel who has since left the firm to teach at Georgetown University Law Center. Wilmer was brought into the case by Gregory S. Schell, managing attorney for Florida Legal Services, who was working on behalf of Jorge Arriaga and other migrant farm laborers. The workers had been recruited by Florida-Pacific Farms and Sleepy Creek Farms to travel up north in order to pick strawberries and raspberries. The workers sued the growers in federal court in Florida, seeking to be reimbursed for their expenses in acquiring U.S. visas and traveling from their home villages to the Florida farms. The workers based their claim on the Fair Labor Standards Act (FLSA). That federal statute requires employers to pay their employees at least a minimum wage. Implementing regulations specify that an employer may not deduct from an employee’s wages the cost of facilities (e.g., a uniform) that primarily benefit the employer, if such deductions drive wages below the minimum wage. Nor can an employer simply require the employee to purchase such facilities on his own. The migrant workers claimed that the visa and transportation costs were primarily for the employer’s benefit and that, when these costs were taken into consideration, they were receiving far less than the minimum wage for their first week of work. Therefore, they argued, the FLSA required the employers to reimburse these costs by the end of the first week of work. The district court granted summary judgment against the claim. Schell set out to get a law firm with a strong appellate practice that could educate the court in a new way about the statute. He brought in Wilmer. The 11th U.S. Circuit Court of Appeals overturned the lower court’s ruling and accepted Wilmer’s proposed interpretation of the FLSA. Low-wage workers recruited to work in this country must be paid for their travel and visa expenses by the end of their first week of work. Migrant farm workers will be entitled to collect more than $100 million in additional wages each year, Schell said. In addition, he estimates, more than 100,000 agricultural guest workers have a right to $300 million in back wages. It is unclear if the Arriaga ruling will be applied outside the 11th Circuit. The U.S. Department of Labor staff wants to enforce the ruling nationally, but this move is opposed by the DOL’s political appointees, according to one informed observer. If the DOL doesn’t act, it will be up to private litigants.

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