3:20-cv-03322-SEM-TSH # 1 Page 1 of 149
`E-FILED
` Wednesday, 02 December, 2020 04:17:35 PM
` Clerk, U.S. District Court, ILCD
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`U.S. DISTRICT COURT FOR THE
`CENTRAL DISTRICT OF ILLINOIS
`SPRINGFIELD DIVISION
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`Case No.
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`JURY DEMANDED
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`Hada Garcia;
`Lidianelly Carreon Garcia;
`David Carreon Vazquez;
`Mario H. Gonzalez;
`Ramon Hernandez Jr.;
`Alberto Montalvo Sr.;
`Alberto Montalvo Jr.;
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`Consuelo Diana Perez,
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`individually and as next friend of
`A.P.;
`Adrian Perez;
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`Liliana Rodriguez,
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`individually and as next friend of
`E.R.;
`Patricia Rodriguez;
`Diane Acuna, as next friend of
`V.A.;
`Vanessa Guzman;
`Gilbert Sanchez Jr.;
`Luis Alonzo Sifuentes;
`Miguel Sifuentes;
`Ediel Tanguma Trevino;
`Judith Valdez,
`individually and as next friend of
`S.V.,
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`Jesus Javier Zuniga Silva &
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`Yadira Zuniga,
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`individually and as next friends of
`Ja.Z. and
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`J.J.Z.;
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`Jose E. Zuniga;
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`Jennifer Zuniga,
`individually and as next friend of
`Ad.H., Al.H., & An.H.;
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`Maria Abigail Zuniga,
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`individually and as next friend of
`L.C. & Y.C.;
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`Plaintiffs.
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`E-FILED
` Wednesday, 02 December, 2020 04:17:35 PM
` Clerk, U.S. District Court, ILCD
`
`U.S. DISTRICT COURT FOR THE
`CENTRAL DISTRICT OF ILLINOIS
`SPRINGFIELD DIVISION
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`Case No.
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`JURY DEMANDED
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`Hada Garcia;
`Lidianelly Carreon Garcia;
`David Carreon Vazquez;
`Mario H. Gonzalez;
`Ramon Hernandez Jr.;
`Alberto Montalvo Sr.;
`Alberto Montalvo Jr.;
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`Consuelo Diana Perez,
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`individually and as next friend of
`A.P.;
`Adrian Perez;
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`Liliana Rodriguez,
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`individually and as next friend of
`E.R.;
`Patricia Rodriguez;
`Diane Acuna, as next friend of
`V.A.;
`Vanessa Guzman;
`Gilbert Sanchez Jr.;
`Luis Alonzo Sifuentes;
`Miguel Sifuentes;
`Ediel Tanguma Trevino;
`Judith Valdez,
`individually and as next friend of
`S.V.,
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`Jesus Javier Zuniga Silva &
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`Yadira Zuniga,
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`individually and as next friends of
`Ja.Z. and
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`J.J.Z.;
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`Jose E. Zuniga;
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`Jennifer Zuniga,
`individually and as next friend of
`Ad.H., Al.H., & An.H.;
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`Maria Abigail Zuniga,
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`individually and as next friend of
`L.C. & Y.C.;
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`Plaintiffs.
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`3:20-cv-03322-SEM-TSH # 1 Page 2 of 149
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`v.
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`Pioneer Hi-Bred International, Inc.;
`Corteva, Inc.;
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`Unknown Pesticide Applicator #1;
`Farm Air, Inc.; and
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`Curless Flying Service, Inc.;
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`Defendants.
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`COMPLAINT
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`INTRODUCTORY STATEMENT
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`1.
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`In the summer of 2019, Defendants Pioneer Hi-Bred International, Inc.
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`and Corteva, Inc. (collectively, “PHI”) brought dozens of migrant workers from the
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`Texas Rio Grande Valley to work detasseling corn in Illinois fields. In two separate
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`incidents that summer, Defendants Unknown Pesticide Applicator #1, Farm Air
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`Inc., and Curless Flying Service, Inc. (collectively, “Pesticide Applicators”) sprayed
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`the Plaintiff workers (the “Workers”) with toxic pesticides as they worked, even
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`though the Workers were plainly visible. After each incident, Defendant PHI (1)
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`failed to provide adequate decontamination measures to the Workers to mitigate
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`the toxicity, and (2) failed to provide truthful information and necessary medical
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`attention to the injured Workers. Moreover, after the second incident, Defendant
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`PHI (1) immediately ordered Workers to return to work in the field, despite the
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`still-ambient pesticides, where Defendants Farm Air, Inc. and Curless Flying
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`Service, Inc. (collectively, the “Curless Defendants”) then sprayed the Workers a
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`second time; and then (2) lied to the Workers about what had occurred, claiming the
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`spray had been smoke, and refusing to provide known information about the
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`pesticides involved.
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`2.
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`Moreover, Defendant PHI violated numerous other worker protections
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`secured under the Migrant and Seasonal Agricultural Worker Protection Act
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`(“AWPA”), 29 U.S.C. §§ 1801-1872, the Fair Labor Standards Act (“FLSA”), 29
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`U.S.C. §§ 201-219, and similar state laws.
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`3.
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`On August 5, 2019, the Curless Defendants intentionally, with callous
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`and reckless indifference, and otherwise tortiously, sprayed the Workers, who were
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`plainly visible in bright neon protective clothing.
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`4.
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`Plaintiffs are the Workers and their non-worker family members (the
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`“Children”) who were harmed by pesticide exposure and other violations of law.
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`They seek redress from Defendants jointly and severally, in the form of their actual
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`damages, including medical expenses and compensation for emotional distress;
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`punitive damages commensurate with the egregious nature of the Defendants’
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`conduct; all liquidated damages available to them under the AWPA and the FLSA;
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`and attorneys’ fees and reasonable costs.
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`JURISDICTION
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`5.
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`This Court has jurisdiction over the Workers’ and the Children’s claims
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`arising under the AWPA and the FLSA under 28 U.S.C. § 1331 (conferring
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`jurisdiction over civil actions arising under laws of the United States).
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`6.
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`This Court also has jurisdiction over the Workers’ and the Children’s
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`claims under 28 U.S.C. § 1332(a), based on the following facts establishing complete
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`diversity of citizenship and satisfaction of the amount-in-controversy requirement:
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`a.
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`b.
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`The Workers and Children are all citizens of Texas;
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`Defendant Pioneer Hi-Bred International, Inc. is incorporated in
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`Iowa, where it maintains its principal place of business;
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`c.
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`Defendant Corteva, Inc. is incorporated in Delaware, where it
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`maintains its principal place of business;
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`d.
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`Defendant Farm Air, Inc. is incorporated in Illinois, where it
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`maintains its principal place of business;
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`e.
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`Defendant Curless Flying Service, Inc. is incorporated in
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`Illinois, where it maintains its principal place of business;
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`f.
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`The amount in controversy for each Worker and Child exceeds
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`$75,000.
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`7.
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`This Court has supplemental jurisdiction over the Workers’ and
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`Children’s state law claims under 28 U.S.C. § 1367, in that the claims are so related
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`to the claims in the action with such original jurisdiction that they form part of the
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`same case or controversy under Article III of the U.S. Constitution.
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`8.
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`This Court is the appropriate venue under 28 U.S.C. § 1391(b), in that
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`the Defendants are subject to personal jurisdiction in this District, and a
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`substantial part of the events or omissions giving rise to the claims in this
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`Complaint occurred in this District.
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`9.
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`This action is brought in the Springfield Division, because the events
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`giving rise to the claims occurred in DeWitt County. See CDIL-LR 40.1(B), (F).
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`4
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`PARTIES
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`Plaintiffs
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`10.
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`In the spring and early summer of 2019, husband and wife farm labor
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`contractors Fidencio Salinas (“FLC Fidencio”) and Arminda Salinas (“FLC
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`Arminda”) (collectively, the “Salinases”), working on behalf of Defendant PHI in
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`Texas, recruited the Workers identified below to perform roguing (weeding out
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`inferior plants) and detasseling (removing corn tassels to prevent self-pollination) in
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`Illinois that summer; arranged for their hire, accommodations, and other logistical
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`details; and subsequently assisted PHI with supervising them in the fields.
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`11.
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`Plaintiff Hada Garcia is 41 years old and lives with her children,
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`Plaintiff Lidianelly Carreon Garcia and Plaintiff David Carreon Vazquez, in Rio
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`Grande City, Texas.
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`12.
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`Plaintiff Lidianelly Carreon Garcia is 21 years old and lives with her
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`mother, Hada, and her brother, David, in Rio Grande City, Texas.
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`13.
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`Plaintiff David Carreon Vazquez is 18 years old and lives with his
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`mother, Hada, and his sister, Lidianelly, in Rio Grande City, Texas.
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`14.
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`Plaintiff Mario H. Gonzalez is 59 years old and lives in Mission, Texas.
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`15.
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`Plaintiff Ramon Hernandez Jr., is 56 years old and lives in
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`Garciasville, Texas.
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`16.
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`Plaintiff Alberto Montalvo Sr. is 39 years old and lives with his son,
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`Plaintiff Alberto Montalvo Jr., in Rio Grande City, Texas.
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`17.
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`Plaintiff Alberto Montalvo Jr. is 18 years old and lives in Rio Grande
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`City, Texas, with his father, Alberto Sr.
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`5
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`18.
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`Plaintiff Consuelo Diana Perez is 38 years old and lives in Alton,
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`Texas, with her family, including her son, Plaintiff Adrian Perez; and her daughter,
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`Plaintiff A.P.
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`19.
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`Plaintiff Adrian Perez is 18 years old and lives in Alton, Texas, with
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`his mother, Consuelo; his sister, A.P.; and other family members.
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`20.
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`Plaintiff A.P. is 16 years old and lives in Alton, Texas with her mother
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`and next friend, Consuelo; her brother, Adrian; and other family members.
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`21.
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`Plaintiff Liliana Rodriguez is 41 years old and lives in Mission, Texas,
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`with her daughters, Plaintiff E.R. and Plaintiff Patricia Rodriguez.
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`22.
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`Plaintiff E.R. is 17 years old and lives with her mother and next friend,
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`Liliana, and her sister, Patricia, in Mission, Texas.
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`23.
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`Plaintiff Patricia Rodriguez is 18 years old and lives with her mother
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`and next friend, Liliana, and her sister, E.R., in Mission, Texas.
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`24.
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`Plaintiff V.A., Liliana’s nephew, is 16 years old and lives with his
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`family in Edinburg, Texas. He brings this suit through his older sister Diane Acuna
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`as his next friend.
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`25.
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`Plaintiff Vanessa Guzman, Liliana’s niece, is 18 years old and lives
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`with her family in Mission, Texas.
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`26.
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`Plaintiff Gilbert Sanchez Jr. is 57 years old and lives in Weslaco,
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`Texas.
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`27.
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`Plaintiff Luis Alonzo Sifuentes is 60 years old and lives in Donna,
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`Texas.
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`28.
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`Plaintiff Miguel Sifuentes is 63 years old and lives in Donna, Texas.
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`29.
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`Plaintiff Ediel Tanguma Trevino is 41 years old and lives in Rio
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`Grande City, Texas.
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`30.
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`Plaintiff Judith Valdez is 50 years old and lives in Rio Grande City,
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`Texas, with her daughter, Plaintiff S.V.
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`31.
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`Plaintiff S.V. is 17 years old and lives in Rio Grande City, Texas, with
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`her mother and next friend, Judith.
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`32.
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`Plaintiff Jesus Javier Zuniga Silva is 43 years old and lives in
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`Mercedes, Texas, with his wife, Plaintiff Yadira Zuniga; their nine-month-old
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`daughter, Plaintiff Ja.Z.; their 17-year-old son, Plaintiff J.J.Z.; and other family
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`members.
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`33.
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`Plaintiff Yadira Zuniga is 38 years old and lives in Mercedes, Texas,
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`with her husband, Jesus Javier; their daughter, Ja.Z.; their son, J.J.Z.; and other
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`family members.
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`34.
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`Plaintiff Ja.Z. is nine months old and lives in Mercedes, Texas, with
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`her parents and next friends Jesus Javier and Yadira; her brother J.J.Z.; and other
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`family members.
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`35.
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`Plaintiff J.J.Z. is 17 years old and lives in Mercedes, Texas with his
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`parents and next friends Jesus Javier and Yadira; his sister, Ja.Z.; and other family
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`members.
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`36.
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`Plaintiff Jose E. Zuniga is 18 years old and lives in Donna, Texas. Jose
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`E. is Jesus Javier and Yadira’s nephew.
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`37.
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`Plaintiff Jennifer Zuniga is 20 years old and lives in Weslaco, Texas
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`with her partner (not a party) and their children, including Plaintiff Ad.H., Plaintiff
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`Al.H., and Plaintiff An.H. (collectively, the “Hernandez Children”). Jennifer is Jesus
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`Javier and Yadira’s daughter.
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`38.
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`Plaintiff Ad.H. is two years old and lives in Weslaco, Texas, with his
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`mother and next friend, Jennifer; his father; and his siblings, including Al.H. and
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`An.H.
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`39.
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`Plaintiff Al.H. is about a year and a half old and lives in Weslaco,
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`Texas, with her mother and next friend, Jennifer; her father; and her siblings,
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`including Ad.H. and An.H.
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`40.
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`Plaintiff An.H. is three years old and lives in Weslaco, Texas, with her
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`mother and next friend, Jennifer; her father; and her siblings, including Ad.H. and
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`Al.H.
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`41.
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`Plaintiff Maria Abigail Zuniga is 22 years old and lives in Mercedes,
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`Texas with her partner (not a party); two children, Plaintiff L.C. and Plaintiff Y.C.
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`(the “Casarez Children”); and other non-party family members.
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`42.
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`Plaintiff L.C. is 19 months old and lives in Mercedes, Texas with his
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`family, including his mother and next friend, Maria Abigail; his father (not a party);
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`and his sister, Y.C.
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`43.
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`Plaintiff Y.C. is 5 years old and lives in Mercedes, Texas with her
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`family, including her mother and next friend, Maria Abigail; her father (not a
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`party); and her brother, L.C.
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`Defendants
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`44. Defendant Pioneer Hi-Bred International, Inc. is an Iowa corporation
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`that uses migrant agricultural workers in its farm operations in Illinois, and which
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`constituted the Workers’ “agricultural employer” within the meaning of the AWPA,
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`29 U.S.C. § 1802(2).
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`45. Defendant Corteva, Inc., d/b/a Corteva Agriscience (“Corteva”), is
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`Defendant Pioneer Hi-Bred International’s parent company. Defendant Corteva is a
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`publicly traded agricultural chemical and seed company with its principal place of
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`business in Wilmington, Delaware. Defendant Corteva was the Workers’
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`“agricultural employer” within the meaning of the AWPA, 29 U.S.C. § 1802(2).
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`46. Defendant Unknown Pesticide Applicator #1 owns and operates the
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`helicopter involved in the July Event described in this Complaint, and employed or
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`contracted with the pilot of that helicopter.
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`47. Defendant Farm Air, Inc. (“Farm Air”) is an Illinois Corporation with
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`its principal place of business in Astoria, Illinois, which provides and maintains
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`aircraft used to apply pesticides to Illinois farms. Farm Air’s president is Harley Joe
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`Curless of Astoria, Illinois. Farm Air owned the plane involved in the August Event
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`described in this Complaint.
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`48. Defendant Curless Flying Service, Inc. (“Curless”) is an Illinois
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`Corporation with its principal place of business in Astoria, Illinois, which employs
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`licensed pesticide applicators to apply pesticides to Illinois farms. Defendant
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`Curless’s president is Harley Joe Curless of Astoria, Illinois. Defendant Curless
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`operated the plane involved in the August Event described in this Complaint.
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`APPLICABLE LAW
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`AWPA
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`49. Congress passed the AWPA to address “activities detrimental to
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`migrant and seasonal agricultural workers; to require farm labor contractors to
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`register . . . ; and to assure necessary protections for migrant and seasonal
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`agricultural workers, agricultural associations, and agricultural employers.” 29
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`U.S.C. § 1801.
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`50. Under the AWPA, every agricultural employer that recruits any
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`migrant agricultural worker is required to “ascertain and disclose in writing to each
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`such worker who is recruited for employment the following information at the time
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`of the worker’s recruitment: (1) the place of employment; (2) the wage rates to be
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`paid; (3) the crops and kinds of activities on which the worker may be employed; (4)
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`the period of employment; (5) the transportation, housing, and any other employee
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`benefit to be provided, if any, and any costs to be charged for each of them; (6) the
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`existence of any strike or other concerted work stoppage, slowdown, or interruption
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`of operations by employees at the place of employment; (7) the existence of any
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`arrangements with any owner . . . of any establishment . . . to receive a commission
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`or any other benefit resulting from any sales by such establishment to the workers;
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`and (8) whether State workers’ compensation insurance is provided, and, if so, the
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`name of the State workers’ compensation insurance carrier, the name of the
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`policyholder of such insurance, the name and the telephone number of each person
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`who must be notified of an injury or death, and the time period within which such
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`notice must be given.” 29 U.S.C. § 1821(a) (emphasis added); see also 29 C.F.R.
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`§ 500.76(b).
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`51.
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`In addition, every agricultural employer that employs any migrant
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`agricultural worker “shall—(1) with respect to each such worker, make, keep, and
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`preserve records for three years of the following information: (A) the basis on which
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`wages are paid; (B) the number of piecework units earned, if paid on a piecework
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`basis; (C) the number of hours worked; (D) the total pay period earnings; (E) the
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`specific sums withheld and the purpose of each sum withheld; and (F) the net pay;
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`and (2) provide to each such worker for each pay period, an itemized written
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`statement of the information required by paragraph (1) of this subsection.” Id.
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`§ 1821(d).
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`52.
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`In addition, no agricultural employer that employs any migrant
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`agricultural worker shall “knowingly provide false or misleading information to any
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`migrant agricultural worker concerning the terms, conditions, or existence of
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`agricultural employment required to be disclosed by subsection (a), (b), (c), or (d).”
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`Id. § 1821(f).
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`53.
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`The disclosures required by § 1821(a) through (c) “shall be provided in
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`written form. Such information shall be provided in English or, as necessary and
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`reasonable, in Spanish or other language common to migrant agricultural workers
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`who are not fluent or literate in English.” Id. § 1821(g).
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`54. Every agricultural employer that employs any migrant agricultural
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`worker shall pay the wages owed to such worker when due. Id. § 1822(a).
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`55.
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`In addition, no agricultural employer “shall, without justification,
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`violate the terms of any working arrangement made by that contractor, employer,
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`or association with any migrant agricultural worker.” Id. § 1822(c).
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`FIFRA Statute and Worker Protection Standards (“WPS”)
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`56.
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`The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”),
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`administered and enforced by the U.S. Environmental Protection Agency
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`(“USEPA”), governs the use of pesticides in the United States. 7 U.S.C. §§ 136-136y.
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`57. Under the FIFRA, “pesticide” is defined to include (with some
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`exceptions inapplicable here) “(1) any substance or mixture of substances intended
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`for preventing, destroying, repelling, or mitigating any pest, (2) any substance or
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`mixture of substances intended for use as a plant regulator, defoliant, or desiccant,
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`and (3) any nitrogen stabilizer.” 7 U.S.C. § 136(u).
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`58. Under the FIFRA, the USEPA created protections for agricultural
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`workers through pesticide-specific restrictions and label requirements, called the
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`Worker Protection Standards (“WPS”). 40 C.F.R. Part 170.
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`59.
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`The FIFRA makes it unlawful for anyone to use a pesticide in a
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`manner inconsistent with its labeling. Id. § 136j(a)(2)(G).
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`60.
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`The WPS “contains a standard designed to reduce the risks of illness or
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`injury resulting from workers’ and handlers’ occupational exposures to pesticides
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`used in the production of agricultural plants on farms . . . and also from the
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`accidental exposure of workers and other persons to such pesticides. It requires
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`workplace practices designed to reduce or eliminate exposure to pesticides and
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`establishes procedures for responding to exposure-related emergencies.” 40 C.F.R.
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`§ 170.1.
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`61.
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`The WPS defines “agricultural employer” to include an owner or
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`responsible manager of an “agricultural establishment,” which is includes, inter
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`alia, a farm. 40 C.F.R. §§ 170.3; 170.305.
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`62.
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`“Employ” means “to obtain, directly or through a labor contractor, the
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`services of a person in exchange for a salary or wages . . . without regard to who
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`may pay or who may receive the salary or wages.” Id. § 170.3.
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`63. A “handler” is defined to include a person employed by an agricultural
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`employer to apply pesticides. Id.
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`64.
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`“Handler employer” means anyone “self-employed as a handler or who
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`employs any handler.” Id.
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`65.
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`“Use, as in ‘to use a pesticide’” includes application as well as “[p]ost-
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`application activities intended to reduce the risks of illness and injury resulting
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`from handlers’ and workers’ occupational exposures to pesticide residues during and
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`after the restricted-entry interval, including responsibilities related to worker
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`notification, training of workers or early-entry workers, providing decontamination
`
`supplies, providing pesticide safety information and pesticide application and
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`hazard information, use and care of personal protective equipment, providing
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`emergency assistance, and heat stress management.” Id. § 170.305.
`
`66.
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`“Early entry means entry by a worker into a treated area on the
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`
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`13
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`
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`agricultural establishment after a pesticide application is complete, but before any
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`restricted-entry interval for the pesticide has expired.” Id.
`
`67. Under the WPS, the “agricultural employer” must assure that workers
`
`receive required protections. Id. §§ 170.7(a)(1); 170.309(b).
`
`68.
`
`The agricultural employer must assure that any covered pesticide is
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`used in a manner consistent with the labeling of the pesticide; provide, to each
`
`person who supervises any worker or handler, information and directions sufficient
`
`to assure that each worker or handler receives the required protections; and
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`“[r]equire each person who supervises any worker or handler to assure compliance
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`by the worker or handler with the provisions of this part and to assure that the
`
`worker or handler receives the protections required by this part.” Id. § 170.7(a)(2)-
`
`(4); see also id. § 170.309(a).
`
`69.
`
`In addition, “[d]uring the application of any pesticide on a farm . . . ,
`
`the agricultural employer shall not allow or direct any person, other than an
`
`appropriately trained and equipped handler, to enter or to remain in the treated
`
`area.” Id. § 170.110; see also id. § 170.407(a).
`
`70.
`
`In addition, “after the application of any pesticide on an agricultural
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`establishment, the agricultural employer shall not allow or direct any worker to
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`enter or to remain in the treated area before the restricted-entry interval specified
`
`on the pesticide labeling has expired, except as provided in this section.” Id.
`
`§ 170.112(a); see also id. § 170.407(a).
`
`71.
`
`The WPS requires the employer to notify workers of pesticide
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`
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`14
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`applications on farms, which, depending on the labeling of the covered pesticide,
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`may require both posting of treated areas and oral notification, or either posting or
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`oral notice. Id. § 170.120(b); see also id. § 170.409(a)(1).
`
`72. Where posting is required, the agricultural employer must post signs
`
`stating DANGER and PESTICIDES in English and Spanish, with specific size and
`
`lettering requirements, at least 24 hours before and throughout the duration of the
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`application and restricted-entry interval, and it must remove the signs within three
`
`days after the end of the restricted-entry interval. See id. § 170.120(c); see also id.
`
`§ 170.409(b).
`
`73. Where oral warnings are permitted, the warning must state the
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`location of the treated area, the time of restricted entry, and instructions not to
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`enter until the restricted-entry interval is over. Id. § 170.120(c); see also id.
`
`§ 170.409(c).
`
`74.
`
`In addition, when workers are on a farm that has had a covered
`
`pesticide applied within the last 30 days, the agricultural employer is required to
`
`display certain information about the pesticide, including the product name and
`
`active ingredient, the time and date of application, and the restricted-entry interval.
`
`Id. § 170.122.
`
`75. When workers are on a field that has had a covered pesticide applied
`
`within the last 30 days, the agricultural employer also must display safety
`
`information, including instructions stating what to do if exposed and the location of
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`the nearest medical facilities. Id. §§ 170.135; 170.309(h); 170.311.
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`
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`15
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`3:20-cv-03322-SEM-TSH # 1 Page 16 of 149
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`76.
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`The WPS also contains detailed provisions requiring decontamination,
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`including requiring provision of supplies in an accessible location whenever a
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`pesticide was applied within the past 30 days; enough water for washing and
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`emergency eye flushing, and sufficient soap and single-use towels. 40 C.F.R.
`
`§§ 170.150; 170.411.
`
`77. Whenever there is reason to believe a worker
`
`has been poisoned or injured by exposure to pesticides used on the
`agricultural establishment, including, but not limited to, exposures
`from application, splash, spill, drift, or pesticide residues, the
`agricultural employer shall:
`
`(a) Make available to that person prompt transportation from the
`agricultural establishment . . . to an appropriate emergency medical
`facility.
`
`(b) Provide to that person or to treating medical personnel, promptly
`upon request, any obtainable information on:
`
`(1) Product name, EPA registration number, and active ingredients of
`any product to which that person might have been exposed[;]
`
`(2) Antidote, first aid, and other medical information from the product
`labeling[;]
`
`(3) The circumstances of application or use of the pesticide on the
`agricultural establishment[;]
`
`(4) The circumstances of exposure of that person to the pesticide.
`
`Id. § 170.160.
`
`
`78.
`
`If an agricultural employer directs a worker to perform activities in a
`
`treated area before expiration of the re-entry period, “[t]he agricultural employer
`
`must ensure that the worker is at least 18 years old.” Id. § 170.605(a).
`
`
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`16
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`3:20-cv-03322-SEM-TSH # 1 Page 17 of 149
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`
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`79.
`
`In addition, before such entry, the agricultural employer must provide
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`each worker certain information, including the pesticides applied, the time of the
`
`restricted-entry intervals, the basis for the early entry, what contact is permitted,
`
`the amount of time the worker is allowed in the restricted area, the personal
`
`protective equipment required by the labeling, and the location of safety
`
`information. Id. § 605(b).
`
`80. Before such entry, the employer must also ensure the worker has read
`
`the applicable labeling and has the proper protective equipment, on which the
`
`worker must be properly instructed, which the employer must properly maintain,
`
`and which the employer may not allow any worker to take home. Id. § 605(d)-(g).
`
`81.
`
`Finally, in the case of such entry, the employer must provide
`
`additional decontamination supplies, including portable eye-flushing containers and
`
`sufficient water for the workers to wash thoroughly. Id. § 605(h)-(j).
`
`OSHA Statute and the field sanitation standards (“FSS”)
`
`82.
`
`The Occupational Safety and Health Act (“OSHA”) requires the U.S.
`
`Department of Labor (“USDOL”) to promulgate occupational safety and health
`
`standards where they would result in improved safety or health for designated
`
`employees. 29 U.S.C. § 655(a).
`
`83.
`
`Pursuant to the OSHA, the USDOL created field sanitation standards
`
`(“FSS”) applicable to any agricultural establishment where 11 or more employees
`
`work in hand-labor field operations. See 29 C.F.R. § 1928.110(a).
`
`
`
`17
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`3:20-cv-03322-SEM-TSH # 1 Page 18 of 149
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`
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`84.
`
`The FSS requires agricultural employers to provide “drinking
`
`water . . . in sufficient amounts, taking into account the air temperature, humidity
`
`and the nature of the work performed, to meet the needs of all employees.” Id.
`
`§ 1928.110(c)(1).
`
`85.
`
`The FSS requires employers to provide “toilet and handwashing
`
`facilities” and to maintain them “in clean and sanitary condition.” Id.
`
`§ 1928.110(c)(2),(3).
`
`86.
`
`The FSS requires that handwashing facilities “be refilled with potable
`
`water as necessary to ensure an adequate supply.” Id.
`
`87.
`
`The FSS requires the employer to inform each employee of the
`
`importance of drinking water frequently. Id. § 1928.110(c)(3),(4).
`
`STATEMENT OF FACTS
`
`Generally Applicable Facts1
`
`88.
`
`In the spring of 2019, Defendant PHI, through its agents, FLC
`
`Fidencio and FLC Arminda, recruited each of the Workers from Texas, where they
`
`lived, to work temporarily in central Illinois that summer.
`
`89. Most of the Workers2 would perform the task of detasseling corn.3
`
`90. Most of the Workers signed work-related documents in Texas as part of
`
`
`1 The following facts apply to each of the Workers, with exceptions as noted.
`2 Plaintiff Alberto Montalvo Sr. did not perform detasseling work; Alberto Sr. was
`recruited to drive the other workers to and from their motel and the fields in which
`they worked.
`3 Detasseling corn involves removing the tassels that hold the corn’s staminate
`flowers, to prevent it from self-pollinating.
`
`
`
`18
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`3:20-cv-03322-SEM-TSH # 1 Page 19 of 149
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`
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`the recruitment process. (For the Workers who were minors, an adult signed on
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`their behalf.)
`
`91.
`
`These documents included a “Worker Disclosure and Information
`
`Statement,” which provided, inter alia, the following terms:
`
`a.
`
`b.
`
`c.
`
`d.
`
`A rate of pay of $9.254 per hour;
`
`A housing stipend of $22 per day, for each day worked;
`
`Paid one-way travel to the fields;
`
`Paid breaks of 29 minutes or less, and breaks of 30 minutes or
`
`more unpaid.
`
`92.
`
`The Worker Disclosure and Information Statement did not contain any
`
`information about workers’ compensation insurance.
`
`93. Each of the Workers arrived from Texas around the first week of July.
`
`94.
`
`The Salinases arranged for the Workers to stay at either the
`
`Candlewood Suites (“Candlewood”) or the WoodSpring Suites (“WoodSpring”), both
`
`located in Champaign, Illinois.
`
`95. During the first week, the Workers only worked five days, but after the
`
`first week, they generally worked six or seven days per week, with only an
`
`occasional day off.
`
`96.
`
`To get to the fields each day, the Workers rode on buses that
`
`Defendant PHI provided, except for Jesus Javier and his family, who rode in Jesus
`
`
`4 Defendant PHI promised a few of the Workers a different hourly wage, as follows:
`Alberto Sr. ($15 per hour); Jesus Javier Sr. ($13 per hour); Mario ($10 per hour);
`Ramon ($10 per hour).
`
`
`
`19
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`3:20-cv-03322-SEM-TSH # 1 Page 20 of 149
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`
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`Javier’s truck.
`
`97.
`
`The average workday at the field started around 5:00 a.m., which
`
`meant the Workers had to be ready to take their bus around 4:00 a.m. Most of the
`
`Workers therefore got up between 3:00 and 3:30 a.m.
`
`98. Normally it took about 30 to 40 minutes for the Workers to get to the
`
`field.
`
`99. When the Workers arrived, they had about 15 minutes to change into
`
`their work clothes and put on their visibility safety gear, and then enter the field.
`
`Sometimes they had to wait for sufficient daylight to begin working.
`
`100. The Workers’ main task, detasseling, required the Workers to walk
`
`through each row of corn to remove the spiky tassel from the tops of the plants.
`
`101. The Workers all wore bright neon orange hats and backpacks as they
`
`worked so that they would be visible and therefore safer.
`
`102. The Workers received one 10- or 15-minute break each morning, then a
`
`30-minute break for lunch, and then, occasionally, another 10- or 15-minute break
`
`in the afternoon.
`
`103. When the Workers took bathroom breaks, FLC Fidencio would tell
`
`them to hurry up and return to the field.
`
`104. For all 100 or so workers, the fields had two to four portable toilets on
`
`each side of the field, sometimes designated by gender (although the designations
`
`were allowed to be ignored).
`
`105. The toilets were often extremely dirty and sometimes lacked toilet
`
`
`
`20
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`
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`paper.
`
`106. At times Defendant PHI would keep a supervisor outside the portable
`
`toilets to hand out toilet paper—he would address each Worker waiting in line, ask
`
`how much they needed, and then give it to the Worker.
`
`107. There were also small sinks on each side of the field for handwashing,
`
`which sometimes ran out of soap; occasionally there was no water for handwashing.
`
`108. Defendant PHI provided tap water (brought from the motel) for
`
`drinking, but it did not taste good.
`
`109. PHI managers constantly reminded the Workers not to drink too much
`
`water.
`
`110. Water ran out on more than one occasion.
`
`111. The Workers always ate their lunch on the buses.
`
`112. About once a week, they would eat on the bus while it was taking them
`
`to another field.
`
`113. Whether or not the bus was moving and transporting them to another
`
`field, the Workers were not paid for their lunch time.
`
`114. Sometimes, when the Workers ate their lunches, and the trip between
`
`fields was shorter than 30 minutes, the Workers did not receive their full 30-minute
`
`lunch break, but it was still unpaid.
`
`115. Defendant PHI had represented in its Worker Disclosure and
`
`Information Statement that breaks under 30 minutes would be paid.
`
`116. Most days, the workday ended in the field between about 4:00 and 5:00
`
`
`
`21
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`3:20-cv-03322-SEM-TSH # 1 Page 22 of 149
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`
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`p.m. and the Workers would arrive back at their motel between 5:00 and 6:00 p.m.
`
`The
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