5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`ORANGEBURG DIVISION
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` Civil Action No.
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`MICHAEL DIAZ, JEAN-NICHOLE
`DIAZ, and DIAZ FAMILY FARMS,
`LLC, on their own behalf and on behalf
`of all others similarly situated,
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` v.
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`AMICK FARMS, LLC,
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`Plaintiffs,
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`Defendant.
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`COMPLAINT
`(JURY TRIAL DEMANDED)
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`Plaintiffs Michael Diaz ,Jean-Nichole Diaz, and Diaz Family Farms, LLC, on their own
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`behalf and on behalf of all others similarly situated (“Plaintiffs”), bring this action against
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`Defendant Amick Farms, LLC (“Defendant”) and allege the following:
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`Plaintiffs are seeking damages and other appropriate relief related to Defendant’s
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`misclassification of Plaintiffs as “independent contractors.” Despite inducing Plaintiffs with
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`promises of independence, Defendant treated Plaintiffs as controlled employees under both federal
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`and South Carolina law. As employees, Plaintiffs were entitled to various federal and state benefits
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`that Defendant did not provide, even though Defendant knew that Plaintiffs should have been
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`classified as employees based on the level of control Defendant exercised over Plaintiffs’ chicken
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`growing operation. Through this and other conduct described herein, Defendant violated various
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`state and federal laws regarding the wages and benefits that it was obligated to offer employees
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`such as Plaintiffs.
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` 5:22-cv-01246-SAL
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`5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 2 of 22
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`1.
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`Because Plaintiffs’ employment relationship with Defendant is typical of
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`Defendant’s relationship with all of its growers, Plaintiffs also request that this action be certified
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`as a class action.
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`PARTIES
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`Plaintiff Michael Diaz is a resident of Swansea, South Carolina, Calhoun County.
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`Plaintiff Jean-Nichole Diaz is a resident of Swansea, South Carolina, Calhoun
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`2.
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`3.
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`County.
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`4.
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`Plaintiff Diaz Family Farms, LLC, is a limited liability company with its principal
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`place of business in Swansea, South Carolina.
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`5.
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`Defendant Amick Farms, LLC is a limited liability company with its principal place
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`of business in Batesburg-Leesville, South Carolina.
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`JURISDICTION AND VENUE
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`6.
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`This Court has subject matter jurisdiction over Plaintiffs’ federal claims pursuant
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`to 28 U.S.C. § 1331 because Plaintiffs’ federal wage and ERISA claims arise under federal law.
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`7.
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`This Court has supplemental jurisdiction over the Plaintiffs’ state law claims
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`pursuant to 28 U.S.C. § 1367, because they arise out of the same transaction or occurrence as
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`Plaintiffs’ federal claims. This Court also has jurisdiction over Plaintiffs’ state law claims pursuant
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`to 28 U.S.C. § 1332(d), which provides federal district courts with original jurisdiction over civil
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`actions in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of
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`interests and costs, and is a class action in which any member of a class of plaintiffs is a citizen of
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`a state different from any defendant.
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`5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 3 of 22
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`8.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and (c),
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`because Defendant transacts business in, is found in, and/or has agents in this judicial district, and
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`because some of the actions giving rise to this complaint took place within this district.
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`9.
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`The Court has personal jurisdiction over Defendant. Defendant has transacted
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`business and maintained substantial contacts in this judicial district.
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`FACTUAL BACKGROUND
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`10.
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`“Broilers” are chickens raised for meat consumption. Modern broilers are generally
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`slaughtered when they are about six weeks old.
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`11.
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`In the 1950s, the U.S. broiler industry began to shift away from individual farmers
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`raising, slaughtering, and selling chickens to the current system in which nearly all broilers are
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`raised by farmers on contract with large-scale sellers. Between 1950 and 1960, the percentage of
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`independent poultry farmers relative to contract farmers dropped from 95% to 5%. During this
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`time, large companies known as “integrators” began to combine the various stages of production,
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`a process known as vertical integration.
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`12.
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`Decades ago, contract growers were actually independent—they relied on their
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`skills and knowledge to grow the highest quality bird they could while managing their own input
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`costs and growing conditions. When they delivered a premium product to the poultry processor
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`they were rewarded with bonuses. Now, contract growers have a very different relationship with
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`the integrator they grow for.
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`13.
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`Today, the broiler industry is almost entirely vertically integrated. Poultry
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`companies now control nearly every step of broiler production, including growing the chicken
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`feed, hatching the chicks, veterinary care, transportation, slaughtering, and selling the final
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`product.
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`5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 4 of 22
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`14.
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`As poultry companies integrated vertically, independent sellers were edged out of
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`market and the industry became highly consolidated. In 1950, over 1.6 million farms were selling
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`chickens. Each farm on average sold about 355 chickens. In 2007, there were only about 27,000
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`growing operations, each selling an average of just over 329,000 chickens per farm. Today,
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`Defendant is one of only about 30 poultry integrators that operate in the United States.
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`15. While Defendant directly owns almost all of its broiler supply chain, it has notably
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`not sought to purchase the farms used to raise chickens. Instead, Defendant outsources the process
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`of raising chickens to what they call “broiler growers” or “independent farmers.” These “growers”
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`raise Defendant’ chickens from shortly after hatching for about six weeks until they are large
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`enough to harvest.
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`16.
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`Defendant recruits growers by promising them that as growers they will run their
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`own farm, acting “entirely as an independent contractor” with the possibility of significant
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`compensation if chickens reach a desired size.
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`17.
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`By using contract growers instead of owning their own farms, Defendant has
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`offloaded enormous capital costs and financial risks onto its growers. Instead of being responsible
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`for the cost of constructing chicken houses, upgrading equipment, managing waste, and potentially
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`losing chickens to natural disasters or other unexpected circumstances, Defendant forces growers
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`to bear these costs by deceptively classifying growers as independent contractors.
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`18.
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`But Defendant refuses to grant growers the independence they were promised or
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`the compensation they are entitled to.
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`19.
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`In reality, Defendant controls virtually every aspect of a grower’s operations. There
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`is no real “independence” for supposedly independent growers despite them shouldering most of
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`the financial risk. Instead, Defendant intentionally misclassifies growers as independent
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`5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 5 of 22
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`contractors when in reality growers are employees who Defendant entirely controls. Because of
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`Defendant’s intentional misclassification of all of its growers, they do not receive the
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`compensation that would be owed to them as employees.
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`20.
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`Put differently, Defendant has devised a scheme to saddle growers with risk and
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`debt, while at the same time directing and controlling every aspect of the chicken growing process
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`and refusing to compensate growers in the manner that federal and state law require.
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`21.
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`Growers are a key part of Defendant’s business; without growers, Defendant would
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`not be able to function.
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`22.
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`To begin working as a grower, farmers must make large investments in barns and
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`equipment, and then ultimately must make upgrades.
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`23.
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`A farmer must build “grow out” houses that will hold thousands of chickens. These
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`houses are expensive to construct and maintain, often requiring that prospective growers take out
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`large loans to finance them.
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`24.
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`After the houses are built, integrators such as Defendant often force growers to pay
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`for costly, highly specific facility or equipment changes. Defendant will threaten to sever grower
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`contracts—which growers rely on to repay their significant loans—if a grower does not make the
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`costly changes to the integrator’s exact specifications. If a grower loses their contract, they are
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`generally unable to use houses for any other purpose and thus are never able to recoup their
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`investment.
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`25.
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`Defendant’s growers are not required to have experience as chicken growers when
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`they obtain their first contract with the integrator. Defendant trains growers and monitors whether
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`growers are following Defendant’s guidelines.
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`5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 6 of 22
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`26.
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`Defendant uses a form contract with its growers (“Amick Grower Contract”). The
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`contract is not negotiated between Defendant and each grower. Every grower signs the same
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`contract.
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`27.
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`The Amick Grower Contract attempts to assert that growers are independent
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`contractors, not employees. The contract states that the grower “is not a representative, agent, or
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`employee of Amick Farms, LLC and acts entirely as an independent contractor.”
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`28.
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`In reality, however, the growers are not given the independence they are promised.
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`Defendant exerts control over every aspect of their growing business.
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`29.
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`The reason why Defendant would like to classify growers as independent
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`contractors and not employees is plain: money.
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`30.
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`Employees, unlike independent contractors, are entitled to prompt payment of
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`certain financial benefits such as the minimum wage and ERISA benefits. Moreover, employees
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`would not have to pay for capital improvements that their employers require to be implemented.
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`Employees also do not bear the risk of loss for activities carried out in the course of their
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`employment, whereas Defendant attempts to hold growers responsible for losses or damage to
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`flocks, even damage caused by a Defendant’s conduct (such as low-quality feed, smaller chicks,
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`or improper guidance from a grower’s supervisors.)
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`31.
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`Rather than properly pay its growers, Defendant wants to have its cake and eat it
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`too: have growers that function as controlled employees but pay them as if they are independent
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`contractors.
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`32.
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`Plaintiffs’ experience is emblematic of Defendant’s growers. Plaintiffs signed a
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`single flock contract with Defendant on December 17, 2019. Plaintiffs then signed the Amick
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`Grower Contract (which was captioned “Broiler Grower Contract”) on March 3, 2020.
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`5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 7 of 22
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`33.
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`Defendant assigns a supervisor to each grower. These supervisors are called
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`“Service Representatives” or “Field Representatives.” Defendant’s service representatives visit
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`farms about once a week. Each visit, the service representative conducts an inspection and leaves
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`a list of to do items for Plaintiffs. Plaintiffs were expected to deal with the items as quickly as the
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`service representative wanted.
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`34.
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`In an attempt to obfuscate the level of control the contract gives Defendant over
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`Plaintiffs, Defendant hides many of its requirements in its “Grower Management Program” and
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`animal welfare and biosecurity guidelines, which the Amick Grower Contract requires every
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`grower to follow (collectively, the “Grower Guidelines”).
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`35.
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`The Grower Guidelines are incredibly detailed and are outlined in a Handbook
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`provided to growers. Compliance with the Grower Guidelines requires following Defendant’s
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`directions about every aspect of the growing operation. And the Amick Grower Contract states
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`that “[i]n the event the grower is not fulfilling his/her obligations then this agreement may be
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`terminated.”
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`I. Right to Control
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`36.
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`The Amick Grower’s Contract and the Grower Guidelines grant Defendant the right
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`to control Plaintiffs’ grow-out operation.
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`37.
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`Defendant exercises this right and controls nearly every aspect of Plaintiffs’ work.
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`Defendant sets Plaintiffs’ schedule, dictates that Plaintiffs may only use approved brands and
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`mixtures of drugs, chemicals, and insecticide, and directs Plaintiffs to house, inspect, and feed
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`chickens in a carefully prescribed way.
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`38.
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`In addition to the Amick Grower Contract, the associated guidelines magnify
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`Defendant’s control over growers.
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`39.
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`Defendant does not expect growers to have any specialized knowledge prior to
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`signing on to be growers for Defendant.
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`40.
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`The Amick Grower Contract requires that Plaintiffs agree, among a host of other
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`requirements, “[t]o follow the Grower Management Program as prescribed by Amick Farms,
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`LLC”; “[t]o follow temperature and ventilation guidelines and recommendations specified by
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`Amick Farms, LLC”; and “[t]o follow the bio-security program prescribed by Amick Farms,
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`LLC.”
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`41.
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`These various components of the Grower Guidelines are incredibly detailed and are
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`provided to growers in various handbooks. Compliance with the Grower Guidelines requires
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`following Defendant’s directions about every aspect of the growing operation exactly.
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`42.
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`According to the Amick Grower Contract, Plaintiffs must “grant unto Amick
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`Farms, LLC representatives the right of ingress and egress to the premises where said birds are
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`being raised during any hour of the day.” Plaintiffs must also “be present and participate in the
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`unloading and placement of chicks as birds arrive from the hatchery.” This unloading and
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`placement happens whenever Defendant decides it will, often in the middle of the night.
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`43.
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`Any attempt by a grower to reschedule or delay delivery is rebuffed by Defendant.
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`Refusal to accept a flock at the time and on the terms that Defendant dictates would risk
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`termination of the Contract by Defendant.
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`44.
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`According to the Amick Grower Contract, the “number and breed of [broiler chicks
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`delivered] is to be determined by Amick Farms, LLC in its sole discretion.”
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`45.
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`Defendant also controls the methods Plaintiffs use on their farm.
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`5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 9 of 22
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`46.
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`The Contract states that Plaintiffs must “provide the land, housing, labor,
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`equipment, litter, water, fuel, electricity and other facilities required for the proper care, feeding
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`and grow out of said birds in accordance with Amick Farms, LLC guidelines.”
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`47.
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`The Contract also states that Plaintiffs must “follow the Grower Management
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`Program as prescribed by Amick Farms, LLC” or risk termination.
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`48.
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`The Contract states that Plaintiffs must not “use any drug, chemical, insecticide or
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`substance coming into contact with the flock unless the concentration, substance, mixture, and
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`timing are approved by Amick Farms, LLC.”
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`49.
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`Plaintiffs must use feed provided by Defendant. Plaintiffs have no control over the
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`timing of feed deliveries, and like a new batch of chickens a feed delivery can arrive in the middle
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`of the night. Plaintiffs are responsible for “routinely check[ing] the amount of feed inventory in
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`the feed storage facilities on the farm, and inform Amick Farms, LLC twenty-four hours in advance
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`of needed delivery.”
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`50.
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`51.
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`Plaintiffs have no right to refuse delivery of feed or to reschedule deliveries.
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`Defendant “provide[s] veterinary services as necessary at no cost to [Plaintiffs].
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`The veterinarian shall be selected solely by the Company. The Company retains title to any
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`medication that is left on [Plaintiffs’] farm.”
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`52.
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`The Grower Guidelines require that Plaintiffs collect deceased birds daily and
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`document them on an Amick Farms chart. The deceased birds “must be disposed of via an
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`approved method.”
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`53.
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`Defendant provides Plaintiffs with the preapproved disposable clothing required by
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`their biosecurity guidelines.
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`5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 10 of 22
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`54.
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`The Grower Guidelines specifically allow Defendant’s biosecurity coordinators to
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`raise the biosecurity risk level during “times of heightened risk,” requiring additional measures by
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`Plaintiffs. These additional restrictions are imposed on Plaintiffs during times like the current
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`Avian Flu outbreak affecting poultry production. These restrictions include not delivering feed to
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`Plaintiffs during an outbreak.
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`55.
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`Amick Farms’ Grower Guidelines include detailed restrictions on how a barn
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`should be lighted, specifying down to the day and specific hours the lights should be on. The
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`Grower Guidelines also specify the drinker height and water flow down to the day.
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`56.
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`Amick Farms’ Grower Guidelines micromanage all aspects of Plaintiffs’ farms.
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`The Guidelines require, among other requirements, that:
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`•
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` “Control rooms should be clean and orderly throughout the flock”
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`• “Grass and grounds should be maintained at all times”
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`• “Alarms should be tested weekly and recorded on mortality charts”
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`• “Generators should be exercised weekly and recorded on mortality charts”
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`• “Leaking water lines, drinkers, and regulators should be repaired or replaced in a
`timely manner not to exceed 48 hours”
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`• “Broken feed lines, fill auger pipes, feeders, and hopper assemblies should be
`repaired or replaced in a timely manner not to exceed 48 hours”
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`• “Fans, heaters and ventilation equipment should be repaired or replaced in a timely
`manner not to exceed 48 hours”
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`57.
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`The Grower Guidelines even go so far as to require that Plaintiffs “[n]ever respond
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`to questions from unknown individuals or media requests without calling your Service
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`Representative first”; “[d]o not allow unscheduled visitors on your property or in the houses”; and
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`“[d]o not take photos or video on the farm and/or inside the houses for use on social media.”
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`58.
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`Defendant makes demands about farms and equipment that do not affect the
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`chickens or animal welfare. These requirements include but are not limited to grass height outside
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`the houses, updating or modifying tractors or tillers, clearing water collected in driveway divots,
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`maintaining grass and grounds, grading driveways, and fixing divots.
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`59.
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`These requirements are communicated as orders, not requests. Plaintiffs are made
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`aware by Defendant that failure to comply would result in termination.
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`60.
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`61.
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`Defendant also controlled who Plaintiffs hired to work on the farm.
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`Defendant dictated exactly how to upgrade portions of the farm, even though
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`Plaintiffs paid for these upgrades.
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`62.
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`Defendant went so far as to garnish Plaintiffs’ wages to cover the costs of upgrades
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`without notifying Plaintiffs ahead of time of the amount that would be garnished.
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`63.
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`The Contract even permits Defendant to take over Plaintiffs’ farm, at Plaintiffs’
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`expense, in certain, vaguely defined circumstances. In the event of “grower neglect in the
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`management of birds, Amick Farms, LLC may undertake the maintenance, treatment, feeding and
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`care of the flock on the grower’s property, and shall have the right to charge the grower with any
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`necessary disbursements to accomplish such purposes.” The Contract does not define “grower
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`neglect.”
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`64.
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`Even without invoking that portion of the Contract, Defendant acted as though it
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`was entitled to exercise broad control over Plaintiffs’ farm.
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`65.
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`Defendant also exercises control over Plaintiffs through use of supervisors, called
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`Service Representatives, employed by the integrator. Service Representatives visit the Plaintiffs’
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`farms on a regular schedule to provide training, order changes to the method of work, and
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`discipline Plaintiffs for failure to follow the precise manner of work dictated by the Amick Grower
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`Contract, the Grower Guidelines, and these supervisors’ written and oral instructions.
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`66.
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`Defendant’s guidelines state that certain levels of mortality “must be reported to
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`the flock supervisor, grow out office, or company veterinarian immediately.”
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`67.
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`Defendant is well aware of the level of control that Service Representatives exert
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`over growers. In job postings seeking to recruit Service Representatives, the company notes that
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`the Service Representative, among other duties, is responsible for “visiting farms weekly or as
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`needed, inform grower of schedules for harvest and placement, . . . being knowledgeable of
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`equipment used on the farm to be able to make recommendations on settings or future purchases.”
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`II. Exclusive Work Arrangement
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`68.
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`Under the Amick Growers Contract, Defendant requires that Plaintiffs enter into an
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`exclusive work agreement.
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`69.
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`The Contract specifies that Plaintiffs agree “to keep no other poultry or birds on or
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`off the premises.” This requirement “applies to anyone residing on the growers’ property and to
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`anyone who may reside elsewhere and work on said farm while birds are present.”
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`70.
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`Defendant places, often without Plaintiffs’ advance knowledge, a large sign with
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`company branding at the entrance of farms that does not include Plaintiffs’ name.
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`71.
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`The company’s Handbook requires growers to post Defendant’s approved signage
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`“in a conspicuous place at the main entrance to the farm.”
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`72.
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`Defendant also requires Plaintiff to post other signage with Amick logos in other
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`areas of the farm. For example, Plaintiff was ordered to put up Amick signage in their control room
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`and Plaintiff’s Amick supervisor ordered Plaintiff via text to “take down all” signage from any
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`potential competitor integrator.
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`5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 13 of 22
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`III.
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`Supplies and Equipment
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`73.
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`74.
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`Under the Amick Growers Contract, Defendant provides supplies to Plaintiffs.
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`The integrator provides multiple handbooks and guidelines that advise Plaintiffs on
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`all aspects of growing chickens, including specific equipment models and supplies. Defendant
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`does not permit Plaintiffs to vary from these detailed requirements.
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`75.
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`Defendant provides Plaintiffs with “feed, medication, vaccine and professional
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`service required in the growout of said birds.”
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`76.
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`The company also provides Plaintiffs with in-person and video training, including
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`a section of the guidelines titled, “Biosecurity Training Videos for Growers and Farm Employees.”
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`IV. At Will Employment
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`77.
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`78.
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`Under the Amick Growers Contract, Plaintiffs are employed at will.
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`The Contract claims that either party can terminate the contract on 90 days written
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`notice. It specifies that Defendant “reserves the right to not place birds with Grower during the
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`90-day notification of termination period” under certain conditions, which include “Refusal to
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`follow Amick Farms, LLC management instructions.”
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`79.
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`Under the Amick Growers Contract, Plaintiffs may be terminated at any time if
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`they do not follow Defendant’s instructions.
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`V. Payment
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`80.
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`Plaintiffs did not receive an hourly wage. Instead, like all of Defendant’s growers,
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`Plaintiffs were paid based on what is known as the “tournament system.”
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`81.
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`All growers are guaranteed a level of base pay by contract. Growers are also eligible
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`for a performance bonus under the tournament system.
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`5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 14 of 22
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`82.
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`The performance bonus is based on the average size of the chickens when they are
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`picked up and how efficiently the chickens are raised.
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`83.
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`These supposed performance-based bonuses, however, have nothing to do with
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`growers’ skills and expertise. Defendant controls all of the inputs, including the quality of the
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`chicks themselves, the feed, and antibiotics, as well as dictating all of the conditions the chickens
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`must be kept in, including temperature and light. Plaintiffs’ supervisors also have the ability to
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`influence compensation.
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`84.
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`The “bonuses” are also a misnomer—the reason it is called the tournament system
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`is that growers are pitted against each other, and the “bonuses” paid to certain growers comes at
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`the expense of other nearby growers, whose compensation is reduced by the extra amount the
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`“winning” grower is paid.
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`CLASS ALLEGATIONS
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`85.
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`Plaintiffs bring this action on behalf of themselves and all others similarly situated
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`under Federal Rule of Civil Procedure 23(a), (b)(1), (b)(2), and (b)(3), as representatives of a class
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`defined as follows:
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`All individuals who worked as broiler chicken growers for Defendant in South
`Carolina at any time between April 18, 2019 and the present.
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`86.
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`Numerosity: The class is composed of hundreds of class members, the joinder of
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`whom in one action is impractical. The class is ascertainable and identifiable from Defendant’s
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`records and documents.
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`87.
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`Commonality: Questions of law and fact common to the class exist as to all
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`members of the class and predominate over any questions affecting only individual members of
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`the class. These common issues include, but are not limited to:
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`Whether Plaintiffs are employees of Defendant;
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`a.
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`5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 15 of 22
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`b.
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`c.
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`d.
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`e.
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`f.
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`g.
`
`
`h.
`
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`88.
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`Whether Defendant breached the implied covenant of good faith and fair dealing
`by deceiving Plaintiffs into accepting an independent contractor relationship;
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`Whether Defendant failed to timely pay Plaintiffs;
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`Whether Defendant improperly withheld Plaintiffs’ wages without the required
`notice;
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`Whether Plaintiffs are entitled to ERISA benefits;
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`Whether Defendant is liable to Plaintiffs and class members for damages for
`conduct that violates the South Carolina Payment of Wages Act;
`
`Whether Defendant is liable to Plaintiffs and class members for damages for
`conduct that violates ERISA;
`
`Whether Defendant is liable to Plaintiffs and class members for compensatory
`damages or other legal or equitable relief.
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`Typicality: Plaintiffs’ claims are typical of the claims of the other class members.
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`Plaintiffs and the other class members have been injured by the same wrongful practices.
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`Plaintiffs’ claims arise from the same practices and course of conduct that give rise to the other
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`class members’ claims and are based on the same legal theories.
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`89.
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`Adequate Representation: Plaintiffs will fully and adequately assert and protect the
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`interests of the other class members. In addition, Plaintiffs have retained class counsel who are
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`experienced and qualified in prosecuting class action cases. Neither Plaintiffs nor their attorneys
`
`have any interests conflicting with class members’ interests.
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`90.
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`Predominance and Superiority: This class action is appropriate for certification
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`because questions of law and fact common to the members of the class predominate over questions
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`affecting only individual members, and a class action is superior to other available methods for the
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`fair and efficient adjudication of this controversy, since individual joinder of all members of the
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`class is impracticable. Should individuals be required to bring separate actions, courts would be
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`confronted with a multiplicity of lawsuits burdening the court system while also creating the risk
`
`
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`
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`of inconsistent rulings and contradictory judgments. This class action presents fewer management
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`difficulties while providing unitary adjudication, economies of scale and comprehensive
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`supervision by a single Court.
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`91.
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`Injunctive Relief: The prosecution of the claims of the putative class as a class
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`action pursuant to Rule 23(b)(2) is appropriate because Defendants have acted, or refused to act,
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`on grounds generally applicable to the putative class, thereby making appropriate final injunctive
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`relief, or corresponding declaratory relief, for the putative class as a whole.
`
`92.
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`Issue class: In the alternative, a class should properly be certified with regard to
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`one or more material issues of fact or law herein pursuant to Fed. R. Civ. P. 23(c)(4) (“When
`
`appropriate, an action may be brought or maintained as a class action with respect to particular
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`issues.”).
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`
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`COUNTS
`
`COUNT ONE: FEDERAL MINIMUM WAGE
`(Fair Labor Standards Act (FLSA) 29 U.S.C. § 203)
`(On Behalf of the Class)
`
`93.
`
`All above-alleged paragraphs are incorporated herein by reference.
`
`94.
`
`Plaintiffs are employees of Defendant.
`
`95.
`
`The Fair Labor Standards Act (FLSA) requires Defendant to pay its employees,
`
`including Plaintiffs, at least the federal minimum wage of $7.25 per hour.
`
`96.
`
`Defendant has not paid Plaintiffs the federal minimum wage for the hours they have
`
`worked.
`
`97.
`
`Plaintiffs have earned less than the minimum wage due to Defendant’s low pay
`
`combined with the deductions from Plaintiffs’ pay Defendant requires for expenses like upgrades
`
`to chicken houses.
`
`
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`5:22-cv-01246-SAL Date Filed 04/18/22 Entry Number 1 Page 17 of 22
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`98.
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`Plaintiffs Michael and Jean Nichole Diaz each worked an average of up to
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`approximately 80 and 40 hours per week respectively. They were expected to be on call 24 hours
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`a day. After paying for expenses and employees, Plaintiffs were making a fraction of the minimum
`
`wage per hour worked.
`
`99.
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`Defendant’s violation was willful. As described above, Defendant knew that
`
`Plaintiffs were not independent contractors and were instead its employees and that Defendant
`
`should have been paying Plaintiffs the federal minimum wage.
`
`COUNT TWO: SOUTH CAROLINA PAYMENT OF WAGES ACT
`(S.C. Code Ann. § 41-10-30)
`(On Behalf of the Class)
`
`100. All above-alleged paragraphs are incorporated herein by reference.
`
`101. Under South Carolina law, employers must notify each employee in writing at the
`
`time of hiring of (1) the normal hours and wages agreed upon, (2) the time and place of payment,
`
`and (3) the deductions which will be made from the wages, including payments to insurance
`
`programs. Any changes in these terms must be made in writing at least seven calendar days before
`
`they become effective.
`
`102. Under South Carolina law, employers may not withhold or divert any portion of an
`
`employee’s wages without written notification to employees of the amount and terms of the
`
`deductions. All employers must pay all wages due at the time and place described in writing at
`
`the time of hiring.
`
`103. Plaintiffs and class members are employees of Defendant.
`
`104. Defendant failed to provide proper notice to Plaintiffs and class members at the
`
`time of hiring.
`
`
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`105. Plaintiffs and class members were entitled to at least the federal minimum wage of
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`$7.25 per hour worked under the FLSA.
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`106. Defendant failed to pay Plaintiffs and class members the wages they were due.
`
`107. Defendant withheld and/or diverted Plaintiffs’ and class members’ wages for
`
`improvements to the farm and other employer expenses.
`
`108. Defendant was not permitted to do so by state or federal law.
`
`109. Defendant did not give written notification to Plaintiffs and class members of the
`
`amount and terms of the deduction as required by South Carolina law
`
`110. There was no bona fide dispute about whether Plaintiffs and class members were
`
`employees. Defendant knew Plaintiffs were employees and should have been earning at least the
`
`federal minimum wage.
`
`COUNT THREE: SOUTH CAROLINA UNFAIR TRADE PRACTICES ACT
`(S.C. Code Ann. § 39-5-20)
`(On Behalf of the Plaintiffs in Their Individual Capacity)
`
`111. All above-alleged paragraphs are incorporated herein by reference.
`
`112. Defendant deceived Plaintiffs into accepting an independent contractor designation
`
`when Defendant knew Plaintiffs were employees.
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`113. Defendant did not show Plain