John Barks v. Silver Bait LLC

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0242p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOHN BARKS and BRENDA HOFFMAN, on behalf of ┐
themselves and others similarly situated, │
Plaintiffs-Appellants, │
│ No. 15-5175
│
v. >
│
│
SILVER BAIT, LLC and BRUNO DURANT, │
individually, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee of Chattanooga.
No. 1:11-cv-00126—Harry S. Mattice, Jr., District Judge.
Decided and Filed: October 2, 2015
Before: MERRITT, McKEAGUE, and WHITE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Martin D. Holmes, M. Reid Estes, Jr., DICKINSON WRIGHT PLLC, Nashville,
Tennessee, for Appellants. William A. Blue, Jr., CONSTANGY, BROOKS, SMITH
& PROPHETE, LLP, Nashville, Tennessee, for Appellees.
_________________
OPINION
_________________
HELENE N. WHITE, Circuit Judge. John Barks and Brenda Hoffman appeal the district
court’s declaratory judgment, entered after a bench trial, holding that the term “agriculture” in
the Fair Labor Standards Act (FLSA) includes the activities of their former employer, Silver Bait
LLC (Silver Bait), in growing and raising worms for sale as fishing bait. We AFFIRM.
1
No. 15-5175 Barks, et al. v. Silver Bait, et al. Page 2
I.
A.
Bruno Durant, president of Silver Bait, moved to the United States from his native France
in 1992 to grow worms. R. 67, Trial Tr., PID 1238; R. 82, Order, PID 1672. After raising
worms on a farm in Georgia for nearly a decade, Durant relocated to rural Tennessee, where he
purchased 750 acres of land. R. 47, Defs.’ Pretrial Br., PID 257; R. 67, Trial Tr., PID 1258.
Durant and his wife established the current Silver Bait operations on the property in early 2005.
R. 67, Trial Tr., PID 1268–69; R. 82, Order, PID 1672.
Silver Bait describes itself as a “partially integrated farming operation” equipped to
house, grow, and package bait worms for sale directly to retailers. R. 47, Defs.’ Pretrial Br.,
PID 256. Silver Bait imports seven- to eight-ton truckloads of baby worms from Europe and
feeds and grows them in seven concrete structures (“worm houses”) Durant built on his property.
R. 66, Trial Tr., PID 935; R. 67, Trial Tr., PID 1247, 1300–01; R. 82, Order, PID 1673. These
worm houses are 540 feet long and fifty feet wide with an eight-foot incline from one end to the
other to aid water drainage. R. 67, Trial Tr. PID 1247; R. 82, Order, PID 1673. Inside, each
worm house has a ten-foot wide tractor driveway down the center, flanked by twenty-foot worm
beds on either side. R. 67, Trial Tr., PID 1247; R. 82, Order, PID 1673.
Silver Bait workers take the baby worms off the trucks and deposit them directly onto the
empty concrete beds. R. 66, Trial Tr., PID 955–56; R. 82, Order, PID 1673. The baby worms
are then covered with a corn-based feed. R. 66, Trial Tr., PID 942; R. 82, Order, PID 1673.
Durant decided to grow his own corn in fields located on Silver Bait’s 750 acres to ensure the
quality of the feed.1 R. 82, Order, PID 1673. Workers send the corn silage through a grinder
and combine it with a mixture of peat moss, lime, and water. R. 82, Order, PID 1673. The feed
mixture is driven into the worm houses on a tractor and dropped on top of the baby worms in
their beds. R. 66, Trial Tr., PID 941–42, 1014. The worms are fed about three times a week and
are usually left in the beds to grow for two or more months. R. 82, Order, PID 1673. The baby
worms weigh between 0.6 and 0.8 grams when they arrive, and are not fit for sale as bait until
1
Durant testified that in 2010, for example, Silver Bait cultivated roughly 300 acres of corn and produced a
yield of around twenty to twenty-two tons per acre. R. 67, Trial Tr., PID 1239.
No. 15-5175 Barks, et al. v. Silver Bait, et al. Page 3
they reach sexual maturity and a weight of roughly 1.3 to 1.7 grams. R. 82, Order, PID 1673–74.
During the relevant years, 2008 to 2011, Silver Bait fed and raised between fourteen and twenty-
one truckloads of worms each year. R. 67, Trial Tr., PID 1300–01.
When the worms reach the appropriate size, they are harvested. A machine lifts the
worms and their feed mixture out of the beds and sifts out some of the dirt. R. 66, Trial Tr., PID
943–45, 1014; R. 82, Order, PID 1674. Then another machine sorts the worms by size, and
workers bring the worms to Silver Bait’s packing room. R. 66, Trial Tr., PID 997–98, 1014; R.
82, Order, PID 1674. Silver Bait makes its own customized bait cups using an injection-molding
machine, rather than purchasing typical Styrofoam or plastic cups designed for food and drink.
R. 66, Trial Tr., PID 899; R. 67, Trial Tr., PID 1259. Workers in the packing room place
roughly thirty worms in each cup. R. 66, Trial Tr., PID 1000–01. The cups are then placed on a
conveyor belt, where they are filled with dirt and fitted with lids through an automated
production process. Id. at PID 1001. Workers then take the filled cups, add labels, and load
pallets for pickup by a delivery service. Id. at PID 1002.
Believing its employees fall within an exemption for agricultural workers, Silver Bait
does not pay overtime. R. 67, Trial Tr., PID 1271. In April 2009, the Department of Labor’s
Nashville district office opened an investigation into possible violations of the FLSA’s wage-
and-hour laws at Silver Bait. R. 66, Trial Tr., PID 1041. The Nashville investigators reached a
preliminary conclusion that Silver Bait does not qualify for the agricultural exemption, id. at PID
1046, 1049–50, but the case was transferred to the Knoxville office before the Nashville office
completed its investigation. R. 82, Order, PID 1675 n.10. In 2010, the Knoxville office issued a
final report finding Silver Bait’s employees exempt. Id. at PID 1675. The report reasoned that
Silver Bait is an “agricultural employer . . . because it employed seasonal workers to cultivate,
grow and harvest agricultural or horticultural commodities” and its employees are “working
exclusively on a farm for the farmer.” Id. The Department of Labor ordered Silver Bait to pay
overtime for one four-week period when the company acted as a wholesaler—importing worms
and immediately reselling them to retailers—but its workers were otherwise treated as exempt.
Id. at PID 1675–76.
No. 15-5175 Barks, et al. v. Silver Bait, et al. Page 4
B.
After obtaining consent forms from eleven other workers, Barks and Hoffman filed this
action against Silver Bait and Durant under the FLSA provision permitting one or more
employees to bring a private action “in behalf of himself or themselves and other employees
similarly situated.” 29 U.S.C. § 216(b). R. 1, Complaint, PID 22–32. After the submission of
consent forms from additional opt-in plaintiffs, the parties stipulated to a list of nineteen former
employees (Plaintiffs, collectively) who would be owed unpaid overtime if Silver Bait and
Durant (Silver Bait, collectively) were found to have willfully violated the FLSA. R. 21–23, 25–
26, 28, Consent Forms; R. 53, Stipulation, PID 270–72.
The district court conducted a two-day bench trial. R. 82, Order, PID 1672. Because the
parties stipulated to the amount of unpaid overtime at issue, their arguments focused on the
applicability of the agricultural exemption. Plaintiffs contended that growing and raising
worms—often called “worm farming” at trial—does not fall within the plain terms of the FLSA
exemption. See, e.g., R. 67, Trial Tr., PID 1324. Silver Bait argued worm farming is agriculture
under a common-sense reading of the statute. See, e.g., R. 67, Trial Tr., PID 1320–21. The
district court agreed with Silver Bait and entered a declaratory judgment in its favor. R. 82,
Order, PID 1684. Plaintiffs now appeal.
II.
We review de novo the determination whether an employee is exempt from the FLSA’s
overtime provisions. Ale v. Tenn. Valley Auth., 269 F.3d 680, 691 (6th Cir. 2001). The district
court found that Silver Bait’s employees are exempt because growing and raising worms is
agriculture. We agree.
A.
The FLSA requires employers to pay covered workers overtime for time worked in
excess of forty hours, but there are exemptions for enumerated occupations and industries.
29 U.S.C. §§ 207, 213. These exemptions are “narrowly construed against the employers
seeking to assert them,” A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945); accord Martin
v. Ind. Mich. Power Co., 381 F.3d 574, 578 (6th Cir. 2004), and their “enlargement by
No. 15-5175 Barks, et al. v. Silver Bait, et al. Page 5
implication” is precluded by the statute’s detail and particularity, Citicorp Indus. Credit, Inc. v.
Brock, 438 U.S. 27, 35 (1987) (quoting Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607,
616–17 (1944)) (internal quotation marks omitted). Only an employee who is “plainly and
unmistakably within [an exemption’s] terms and spirit” will be held exempt. Arnold v. Ben
Kanowsky, Inc., 361 U.S. 388, 392 (1960); accord Chao v. Double JJ Resort Ranch, 375 F.3d
393, 396 (6th Cir. 2004).
Among the exempt are “employee[s] employed in agriculture.” 29 U.S.C. § 213(b)(12).
This exemption “embrace[s] the whole field of agriculture.” Maneja v. Waialua Agric. Co.,
349 U.S. 254, 259 (1955); see also Addison, 322 U.S. at 612 (describing the exemption as “far-
reaching”); Reich v. Tiller Helicopter Servs., Inc., 8 F.3d 1018, 1025–26 (5th Cir. 1993)
(discussing the “broad reach” intended by Congress). Yet “no matter how broad” its coverage,
the exemption must “apply only to agriculture,” and courts are “left with the problem of what is
and what is not properly included within that term.” Maneja, 349 U.S. at 259.
The FLSA provides:
“Agriculture” includes farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the production,
cultivation, growing, and harvesting of any agricultural or horticultural
commodities (including commodities defined as agricultural commodities in
section 1141j(g) of Title 12), the raising of livestock, bees, fur-bearing animals, or
poultry, and any practices (including any forestry or lumbering operations)
performed by a farmer or on a farm as an incident to or in conjunction with such
farming operations, including preparation for market, delivery to storage or to
market or to carriers for transportation to market.
29 U.S.C. § 203(f).2 The Supreme Court has explained that, unlike exemptions, general
definitions found in § 203 are not subject to the “narrow-construction principle.” Thus, we will
not extend the exemption beyond the meaning of agriculture, but the terms of its definition are
properly construed to reach the whole field of agriculture. See Sandifer v. U.S. Steel Corp.,
2
The cross-referenced statutory provision, 12 U.S.C. § 1141j(g), was redesignated as subsection (f) on May
22, 2008. See Food, Conservation, and Energy Act, Pub. L. No. 110-234, 122 Stat. 923 (2008). Subsection (f)
defines the term agricultural commodity to include, “in addition to other agricultural commodities, crude gum
(oleoresin) from a living tree, and the following products as processed by the original producer of the crude gum
(oleoresin) from which derived: Gum spirits of turpentine and gum rosin.” 12 U.S.C. § 1141j(f); see also 29 C.F.R.
§ 780.116 (explaining the cross-reference).
No. 15-5175 Barks, et al. v. Silver Bait, et al. Page 6
134 S. Ct. 870, 879 n.7 (2014); Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2172
n.21 (2012).
Agriculture is divided into two distinct categories. Farmers Reservoir & Irrigation Co. v.
McComb, 337 U.S. 755, 762–63 (1949); see also 29 C.F.R. § 780.105(a). First, agriculture is
defined to mean “farming in all its branches,” and the statute provides an illustrative list of
farming activities. 29 U.S.C. § 213(b)(12); see also 29 C.F.R. § 780.105(b). This list is not
exhaustive; the examples are “among other things” included in the phrase “farming in all its
branches.” Id. The cases describe this category as “primary” agriculture. Bayside Enters., Inc.
v. NLRB, 429 U.S. 298, 300 & n.7 (1977). Second, agriculture is defined to include non-farming
activities that are closely related to farming. 29 U.S.C. § 213(b)(12); see also 29 C.F.R.
§ 780.105(c). This “broader meaning” of the term reaches “any practices . . . that are performed
either by a farmer or on a farm, incidently [sic] to or in conjunction with ‘such’ farming
operations.” Farmers Reservoir & Irrigation, 337 U.S. at 763. The cases describe this category
as “secondary” agriculture. Bayside Enters., 429 U.S. at 300 & n.7. By the express terms of the
definition, the two categories are related. Without primary agriculture, there can be no
secondary agriculture.
The Department of Labor has offered interpretive guidance in 29 C.F.R. pt. 780. Courts
must “accept an agency’s reasonable resolution of an ambiguity in a statute that the agency
administers,” Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015), but only where the agency has
“received congressional authority to determine the particular matter at issue in the particular
manner adopted,” City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013). Here, the
Department’s views were published in interpretive bulletins authored by the Administrator of the
Wage and Hour Division, who expressly declined to exercise the Department’s rulemaking
authority. 37 Fed. Reg. 12,084, 12,119 (June 17, 1972); see also U.S. Dep’t of Labor v. N.C.
Growers Ass’n, 377 F.3d 345, 352 (4th Cir. 2004); 29 C.F.R. § 780.5. Thus, we consider the
Department’s views only according to their power to persuade, mindful of the Department’s
expertise and thorough consideration of the issue. Christensen v. Harris Cty., 529 U.S. 576, 587
(2000); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Atrium Med. Ctr. v. U.S. Dep’t of
Health & Human Servs., 766 F.3d 560, 573 & n.2 (6th Cir. 2014).
No. 15-5175 Barks, et al. v. Silver Bait, et al. Page 7
B.
The district court determined that Silver Bait is engaged in the business of growing and
raising worms, and Plaintiffs do not contest this finding. R. 82, Order, PID 1676; Barks Br. 2.
The district court further determined that growing and raising worms is agriculture under
the farming meaning of the term, not the secondary meaning of the term. R. 82, Order,
PID 1683–84. Not every employee who works at a farming operation is an exempt agricultural
worker, but Plaintiffs apparently concede they would be covered by the exemption if Silver
Bait’s business is held to be a farming operation.3 See Barks Br. 2. Thus, we do not address the
circumstances and activities of each individual employee, and we confine our review to the
interpretation of “agriculture” and the definitional phrase “farming in all its branches.”
1.
We begin with the ordinary meaning of those terms. “Agriculture” is an expansive
concept, and “farming” is only marginally more precise. Dictionaries provide useful insight into
their common usage. See, e.g., Kellogg Brown & Root Servs., Inc. v. United States, 135 S. Ct.
1970, 1976 (2015); Yates v. United States, 135 S. Ct. 1074, 1081–82 (2015). Webster’s Third
New International Dictionary describes “agriculture” as, among other things, “the science or art
of cultivating the soil, harvesting crops, and raising livestock” and “the science or art of the
production of plants and animals useful to man and in varying degrees the preparation of these
products for man’s use and their disposal.” Webster’s Third New International Dictionary
44 (1986). To “farm” is “to devote (land) to agriculture,” “to manage and cultivate (land) as a
farm,” or “to engage in the business of raising crops or livestock.” Id. at 824. Black’s Law
Dictionary defines “agriculture” as “[t]he science or art of cultivating soil, harvesting crops, and
raising livestock,” and the verb “farm” as “[t]o cultivate land [or] conduct the business of
farming.” Black’s Law Dictionary 83, 723 (10th ed. 2014). These definitions are instructive but
not conclusive. See Yates, 135 S. Ct. at 1082 (“Ordinarily, a word’s usage accords with its
3
The district court did not evaluate Plaintiffs’ activities individually. See R. 82, Order, PID 1676–84.
After addressing the growing and raising of worms, the district court found that “all other activities carried on at
Silver Bait are characteristic of, and indistinguishable from, that carried on at a traditional ‘farm.’” Id. Plaintiffs do
not challenge that Silver Bait employees who are engaged in non-farming activities, like construction and packing,
would be engaged in exempt secondary agriculture if the primary activity of worm farming is agricultural.
No. 15-5175 Barks, et al. v. Silver Bait, et al. Page 8
dictionary definition. In law as in life, however, the same words, placed in different contexts,
sometimes mean different things.”). They do, however, suggest that raising worms is not a
traditional subject of agriculture but still falls within the margins of the term’s ordinary meaning
as involving the production of animals useful to man and the preparation of products for man’s
use. See Webster’s Third New International Dictionary, at 44.
2.
Our understanding of “farming in all its branches” is further informed by the illustrative
list of examples provided in the FLSA. 29 U.S.C. § 203(f). Clearly, if raising worms falls
within a listed example, the agricultural exemption applies. But even if not, the examples
suggest the types of activities Congress intended to capture within the broadly phrased definition
and are not exclusive. 29 C.F.R. § 780.108. Two of the four examples are not relevant. Raising
worms plainly is not “the cultivation and tillage of the soil,” see Donovan v. Frezzo Bros., Inc.,
678 F.2d 1166, 1169–70 (3d Cir. 1982) (discussing soil); 29 C.F.R. § 780.110, or “dairying,” see
NLRB v. Karl’s Farm Dairy, Inc., 570 F.2d 903, 905–06 (10th Cir. 1978) (discussing dairying);
29 C.F.R. § 780.111.
The third FLSA example is the broadest, covering “the production, cultivation, growing,
and harvesting of any agricultural or horticultural commodities.” 29 U.S.C. § 203(f). This
example brings the analysis full circle. Agriculture is defined as farming, which in turn is
defined to include agricultural commodities. The Department adds that “agricultural or
horticultural” refers to commodities resulting from “the application of agricultural and
horticultural techniques.” 29 C.F.R. § 780.112. The Department lists “[g]rains, forage crops,
fruits, vegetables, nuts, sugar crops, fiber crops, tobacco, and nursery products” as examples of
products of the soil, and “milk, wool, eggs, and honey” as qualifying products of domesticated
animals. Id. The Department excludes commodities produced by “the gathering or harvesting of
wild commodities such as mosses, wild rice, burls and laurel plants, the trapping of wild animals,
or the appropriation of minerals and other uncultivated products from the soil.” 29 C.F.R.
§ 780.114. Courts have added pine straw and Christmas trees to the list of agricultural
commodities, but not peat. N.C. Growers, 377 F.3d at 352 (holding Christmas trees are a
horticultural commodity); Morante-Navarro v. T&Y Pine Straw, Inc., 350 F.3d 1163, 1170
No. 15-5175 Barks, et al. v. Silver Bait, et al. Page 9
(11th Cir. 2003) (interpreting Department bulletins to hold that pine straw is an agricultural
commodity); Wirtz v. Ti Ti Peat Humus Co., 373 F.2d 209, 213 (4th Cir. 1967) (holding peat is
not an agricultural commodity). The list of included and excluded commodities is instructive in
that worms are more like the included cultivated commodities than excluded wild ones, but the
determination whether worms are a covered commodity by definition hinges on our resolution of
the ultimate dispute over the categorization of worms as either agricultural or not.
Lastly, the fourth example addresses employees “raising livestock, bees, fur-bearing
animals, or poultry.” This list features members of the animal kingdom, a classification shared
by worms. But worms are neither furred nor fowl, and bees are in a different phylum. Worms
are also a poor fit for livestock, a term used to describe traditional farm animals. See, e.g.,
Baldwin v. Iowa Select Farms, L.P., 6 F. Supp. 2d 831, 836 (N.D. Iowa 1998) (hogs are
livestock); Martinez v. Deaf Smith Cty. Grain Processors, Inc., 583 F. Supp. 1200, 1204 (N.D.
Tex. 1984) (cattle are livestock). The Department views livestock as essentially a mammalian
category, including “[c]attle (both dairy and beef cattle), sheep, swine, horses, mules, donkeys,
and goats” but not “albino and other rats, mice, guinea pigs, and hamsters.” 29 C.F.R.
§ 780.120. Nor is fish livestock. Hedrick v. S. States Coop., Inc., No. 4:10-CV-12-JG, 2010 WL
3834631, at *5 (E.D.N.C. Sept. 30, 2010); 29 C.F.R. § 780.120. Thus, raising worms is not
expressly exempt within the meaning of any of the statutory examples.
3.
Against this backdrop, we return to the concept of farming and the question whether the
raising and growing of worms is an unlisted farming activity. We are guided by the ordinary
meaning of the term, the statutory context, and Congress’s embrace of the entire field of farming
within the meaning of agriculture. The Department makes clear that “[t]he language ‘farming in
all its branches’ includes all activities, whether listed in the definition or not, which constitute
farming or a branch thereof under the facts and circumstances,” 29 C.F.R. § 780.107, and
suggests, under the heading “Determination whether unlisted activities are ‘farming,’” that “it
may be necessary to consider various circumstances such as the nature and purpose of the
employer, the character of the place where the employee performs his duties, the general types of
activities there conducted, and the purpose and function of such activities,” 29 C.F.R. § 780.109.
No. 15-5175 Barks, et al. v. Silver Bait, et al. Page 10
The raising and growing of bait worms—at least as practiced by Silver Bait—shares
much in common with traditional farming. First, Silver Bait’s business has the same basic
purpose as many traditional farms. Like the hog farmer or cattle rancher, Silver Bait raises
animals for sale as a commodity. Without doubt, worms are not a traditional farm animal as that
term is commonly understood; but the meaning of farming is not frozen in time, see 29 C.F.R.
§ 780.8; id. at § 780.104, and there is nothing in the statute to suggest that the exemption should
be circumscribed by tradition. To the contrary, the FLSA expressly lists forms of traditional
farming but still provides for the exemption of unlisted activities. 29 U.S.C. § 203(f). Further,
the Supreme Court has endorsed an evolving view of agriculture, albeit in the context of
methodology rather than the object of the agricultural endeavor. Maneja, 349 U.S. at 724
(“There is no reason to construe the FLSA so as to discourage modernization . . . .”); Farmers
Reservoir & Irrigation, 337 U.S. at 760–61 (discussing “[e]conomic progress”). The term is
flexible enough to accommodate the cultivation of crops and farming of animals that Congress
may not have contemplated when the legislation was enacted.
The worms’ intended use as bait also does not deprive them of their agricultural
character. Although many agricultural products are consumed as food, plants and animals are
not always cultivated for this purpose. See, e.g., 29 U.S.C. § 203(f) (listing “fur-bearing
animals” and “horticultural commodities” as farming products); Marshall v. Thiele, No. 76-38,
1978 WL 1759, at *3–4 (M.D. Pa. Nov. 7, 1978) (holding the agricultural exemption applies to
the raising of race horses); 29 C.F.R. § 780.106 (“[W]here an employer owns a factory and a
farm and operates the farm only for experimental purposes in connection with the factory, those
employees . . . are considered as employed in agriculture.”); id. § 780.119 (“[T]he fact that cattle
are raised to obtain serum or virus . . . does not affect the status of the operations . . . .”).
Although the production of bait is not a traditional objective of agriculture, there is little to
distinguish this purpose from the disposition of other farming products in the market.
Plaintiffs argue for a more rigid view of the types of animals that may be covered by the
exemption. Barks Br. 15–16. Although they concede that the list of examples provided in the
statute is not exhaustive, Plaintiffs read the Department’s interpretive bulletins to exclude
unlisted animals. Id. at 16. The Department does not go so far. Rather, it makes clear that
No. 15-5175 Barks, et al. v. Silver Bait, et al. Page 11
farming includes “all activities which constitute farming or a branch thereof under the facts and
circumstances,” whether listed or not. 29 C.F.R. § 780.107. Plaintiffs rely on 29 C.F.R.
§ 780.119, which provides, under the heading “Employment in the specified operations
generally”: “Employees are employed in the raising of livestock, bees, fur-bearing animals or
poultry only if their operations relate to animals of the type named.” 29 C.F.R. § 780.119. But
this bulletin does not exclude unlisted animals from the statutory category of agriculture. Rather,
it addresses specifically the meaning of livestock, bees, fur-bearing animals, and poultry.4
Plaintiffs also emphasize that fish farming is separately exempted under 29 U.S.C.
§ 213(a)(5). Barks Br. 13–14. However, 29 C.F.R. § 780.109 states that fish farming “fall[s]
within the scope of the meaning of ‘farming in all its branches,’” in addition to the separate
exemption, and courts have found that raising fish is an agricultural activity. E.g., Hedrick,
2010 WL 3834631, at *4–5 (finding that fish farm employee who “engaged in growing and
harvesting living creatures for food consumption” was exempt); Tullous v. Tex. Aquaculture
Processing Co., 579 F. Supp. 2d 811, 819 (S.D. Tex. 2008) (assuming that raising catfish is
agriculture); see also Hodgson v. Idaho Trout Processors Co., 497 F.2d 58 (9th Cir. 1974)
(holding that employees engaged in trout processing are not agricultural workers because they
“neither cultivate nor raise anything”). The National Labor Relations Board came to the same
conclusion. Domsea Farms, Inc., 211 N.L.R.B. 832, 833 (1974) (finding that salmon farming is
agriculture). Like worms, fish are not traditional farm animals, but they are raised and harvested
like an agricultural commodity.
Silver Bait’s operations also resemble a traditional farm. Plaintiffs correctly note that the
cultivation of corn on the property should not influence the determination whether raising worms
is agricultural, Barks Br. 17–19, because each activity must be evaluated independently under the
plain terms of the statute. 29 U.S.C. § 209(f) (providing for separate analysis of activities on
farms); Bayside Enters., 429 U.S. at 301 (“An employer’s business may include both agricultural
4
Plaintiffs also rely on 29 C.F.R. § 780.120, which further explains that “livestock” includes “only
domestic animals ordinarily raised or used on farms” and excludes “albino and other rats, mice, guinea pigs, and
hamsters.” The bulletin cites to Mitchell v. Maxfield, No. 3080, 1956 BL 83 (S.D. Ohio Feb. 17, 1956), which held
that “the raising of mice, rats, and guinea pigs” is not agriculture because it “does not constitute the raising of
livestock or fur-bearing animals within the meaning of Section 3(f) of the Act.” Mitchell appears to treat the
statutory examples as an exhaustive list. See id. at *2. To the extent Mitchell suggests without analysis that unlisted
animals can never be agricultural, we find it unpersuasive.
No. 15-5175 Barks, et al. v. Silver Bait, et al. Page 12
and nonagricultural activities.”). But Silver Bait’s worm-raising operations would be considered
farming even if it purchased its feed. Silver Bait houses the worms, feeds them, monitors their
growth, and eventually harvests them. Cf. N.C. Growers, 377 F.3d at 352 (holding that
“extensive care and management” of Christmas trees makes them “cultivated commodities”);
Morante-Navarro, 350 F.3d at 1170 (holding that cultivation distinguishes farming from
harvesting wild commodities); 29 C.F.R. § 780.112. Although the use of sorting machines and
concrete worm beds evoke comparisons to industrial production, modern farming of livestock
and poultry similarly has many industrial qualities. See, e.g., Wirtz v. Tyson’s Poultry, Inc.,
355 F.2d 255, 261 (8th Cir. 1966) (holding that processing eggs is farming); Iowa Select Farms,
6 F. Supp. 2d at 841–43 (holding that industrial hog production is farming).
Thus, although not a specifically enumerated farming activity, there is little to distinguish
Silver Bait from a traditional farm other than the unfamiliarity of worm farming. We agree with
the Department and the district court that the growing and raising of worms is a form of farming
within the FLSA’s agricultural exemption.
III.
Because the agricultural exemption covers the growing and raising of bait worms, we
AFFIRM the judgment of the district court.