DENVER (CN) – A Utah labor contractor with ties to a Mormon sect took its challenge of $1.1 million in back wages owed to child laborers, as calculated by the U.S. Department of Labor, to the 10th Circuit on Wednesday.
This case began when the Labor Department fined Paragon for using 1,400 child laborers on a pecan farm from 2012 to 2013, a fine the 10th Circuit upheld in 2018. The children were members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, a cult unaffiliated with the Mormon Church led by Warren Jeffs.
After a federal judge ordered Paragon and its president Brian Jessop to pay the children $200,000 for their work, the company appealed to the 10th Circuit claiming the children were volunteers who picked the pecans for pleasure – not employees who expected to be paid. The court denied this argument in 2018.
Using 135 complaint forms filled out by former child workers, the Department of Labor determined Paragon owed them $1.1 million in back wages. Paragon disputed that figure Wednesday before a three-judge panel in Denver.
“Given the fact that your client did not keep any records at all, how can we look at the inferences and give any credence at all to your argument at all?” asked Senior U.S. Circuit Judge Paul Kelly, appointed by George W.H. Bush.
On behalf of Paragon Contractors Corporation and owner Jessop, attorney Rick Sutherland of Salt Lake City firm Jackson Lewis called into question the government’s math.
“The Department of Labor used assumptions, and it calculated a universal average,” Sutherland said. “But in calculating the universal average, he didn’t even use all of the claims forms and calculated the highest number that he could justify from those forms.”
Kelly checked the math too.
“Well he used the mode,” Kelly countered. “That’s the most frequent number in a set of data.”
U.S. Attorney Erin Mohan said the Department of Labor did the best they could with the documents they had.
“As we discussed today, Paragon and Brian Jessop produced no records at all of the hours that hundreds of children worked for them at them at the southern Utah pecan ranch,” Mohan said. “They didn’t pay the children at all. So unlike in many cases where employers failed to keep records,. you can’t use paystubs to construct the children’s schedules.”
U.S. Circuit Judge Gregory Phillips presided over the panel and U.S. Circuit Judge Scott Matheson telecommuted via Salt Lake City. Both are Barack Obama appointees.
The panel did not indicate when or how it will rule.