Mexican Carnies’ Wage Claims Greenlighted

(CN) - Mexican migrant workers for Butler Amusements, Inc. - one of the largest carnival companies in the Western United States - can continue with their claims that the company violates state and federal minimum wage and overtime laws, a federal judge ruled.

Butler's carnival operates at 135 to 140 distinct locations in Arizona, California, Idaho, Nevada, Oregon and Washington during its season, which typically lasts longer than seven months.

John Doe I and John Doe II worked for Butler for seven and six year, respectively, under the H-2B visa program, which allows U.S. employers unable to find willing and able American workers to hire foreigners to satisfy their labor needs.

On job applications, Butler described their positions as involving a variety of attending duties and operating rides and concessions, with some set-up and takedown required.

The workers allege in their complaint that they generally worked between 10 and 14 hours, six or seven days a week, but did not receive overtime pay despite promises by Butler that employees would be paid at or above minimum wage along with overtime.

Butler argued that the employees are not entitled to federal minimum wage under the Fair Labor Standards Act because of the amusement exemption, which also limits overtime pay. The exemption applies to workers employed by an amusement or recreational establishment that does not operate for more than seven months in any calendar year.

Furthermore, the exemption applies only to employees who are employed by the establishment, but not in the establishment. Butler argued that each of the events and carnivals that the employees work at are separate establishments, and therefore did not last longer than seven months.

But the workers claim that Butler's business operations are inherently mobile and operate out of an office in Oregon. Because that office is not an amusement establishment and they work for more than seven months out of the year, they say the exemption does not apply to their claims.

However, the workers failed to present any evidence that they were hired out of the Oregon office or that they ever received any assignments from there, so U.S. District Court Judge Joseph Spero could not rule that the office was the relevant establishment.

However, Spero said he could not decide at this point whether the individual carnivals should be found to be the relevant establishments. Although "this case may present the unusual situation in which more than one physical location should be found to constitute a single establishment," the record before the court is not fully developed to allow a decision at this stage of litigation, Spero said.

The workers also claim that even if the court were to agree with Butler that each carnival location is a separate establishment, the evidence does not show that they were employed by the carnivals rather than simply worked the shows.

The job title that Butler used when obtaining the visas and in classified advertisements was "amusement and recreation attendants," but it is more important to look at what the employees did rather than how their work was characterized, the judge said.

Butler has not provided sufficient evidence to show that the employees were employed by the individual carnivals rather than for the enterprise as a whole, Spero added. The carnival workers, on the other hand, presented evidence that at least Doe II performed work for the enterprise as a whole rather than for one specific carnival when he was assigned to work at Butler's repair yard.

This dispute cannot be resolved at this stage of the case, Spero found.

As to the workers' state law claims, Spero found that full-time carnival ride operators are exempt from overtime requirements but are not exempt from minimum wage requirements and penalties.

This fact again raises a dispute as to what type of work the employees performed during their employment with Butler and whether they were considered full-time carnival ride operators, Spero said.

Butler's job descriptions could provide evidence that the employees worked as full-time ride operators, while the workers' evidence could indicate that they were trained on subjects unrelated to the operation of rides and that their work included cleaning up the carnival grounds.

Because a dispute remains, summary judgment for either party on this issue is inappropriate, Spero concluded.

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