IMMACULA ANTENOR, ET AL., PLAINTIFFS-APPELLANTS, YSNEL OSNEL, PLAINTIFF,

v.

D & S FARMS; IORI FARMS, INC.; VIRGIL S. GIL TURKE, A/K/A VIRGIL BANCIU; AG-TECH SERVICES, INC., DEFENDANTS-APPELLEES

BARKETT, Circuit Judge: Immacula Antenor and 610 other seasonal agricultural workers (“farmworkers” or “pickers”) appeal from a summary judgment in favor of D & S Farms and Iori Farms, Inc. (“growers”) on their claims under the Migrant and Seasonal Agricultural Worker Protection Act and the Fair Labor Standards Act.

The district court granted the judgment after concluding that the farmworkers presented insufficient evidence that they were “employed” by the growers under these statutes.

Upon de novo review of the record, we find substantial evidence that the growers, along with a labor contractor, were “joint employers” of the farmworkers.

Accordingly, we reverse the summary judgment and remand for proceedings consistent with this opinion. I.

FACTUAL BACKGROUND The facts relevant to the existence of an employment relationship between the growers and pickers can be summarized as follows.

In the mid-1980s, the growers began producing snap beans for fresh market sale.

In search of a steady supply of labor to pick the beans, the growers turned to Virgil Turke, owner and operator of Ag-Tech Services, Inc. (“Ag-Teeh”), a labor contracting business.

The growers and Turke agreed that he would assume responsibility for hiring, furnishing and paying the pickers, and that he would be paid $3.90 per box of beans.

The farmworkers were among the people hired by Turke to pick the growers’ crops between 1986 and 1989.

Based on planting schedules and market demand, the growers decided when to harvest a particular bean field.

After selecting a field, they told Turke its location and the number of workers needed.

Turke then arranged for subcontractors to recruit and hire pickers.

After arriving at a field, the pickers were assigned rows by Turke and his subcontractors.

They could not begin picking, however, until the growers and their onsite foremen gave the command to start work, because it was essential, for commercial reasons, that picking not begin until the morning dew had lifted from the beans.

The pickers filled the boxes that were brought to the field by the growers and distributed by Turke and the subcontractors.

As the pickers filled the initial allotment of boxes, they walked to the growers’ field trucks, where one of the growers’ employees gave them additional boxes.

Two sets of supervisors, also known as “field walkers,” oversaw the pickers’ work.

One set was hired by Turke and the other set was hired by the growers.

Both sets of field walkers passed through the rows of beans, checking the work of individual pickers and, when work was found to be deficient, spoke directly to the picker to ensure that corrective steps were taken; the growers’ field walkers also complained about deficient work to Turke and his subcontractors.

The subcontractors’ assistants carried full boxes to the growers’ trucks, where they were weighed and closed by the subcontractors or their assistants.

The growers’ field walkers then loaded the boxes on trucks and drove them to the growers’ packing facility.

As the day progressed, more and more of the growers’ field walkers’ time was absorbed in stacking and loading boxes, with a corresponding decrease in the time devoted to supervision of individual bean pickers.

Work normally concluded when the pickers completed the rows assigned to Turke by the growers.

On some occasions, however, the growers decided the crew would work longer or shorter hours, depending on their harvest needs.

If the growers decided, for example, to halt picking to avoid overloading then-packing and storage facilities, their field walkers went to the field and removed the picking buckets from the pickers’ hands.

The growers’ payment to Turke was based on the number of boxes of beans delivered to the packinghouse.

Although the price was to be $3.90 per box, the actual payment was less.

Because Turke was financially unable to purchase worker’s compensation insurance for the farmworkers, the growers withheld lie per box from his compensation to purchase a worker’s compensation policy, which named the growers as the insured parties and employers of the farmworkers.

The growers also computed social security taxes due on the workers and issued Turke two checks — one for the taxes and another for the agreed upon price per box less the social security taxes and the Hi per box for worker’s compensation insurance.

From his payment, Turke paid the subcontractors a set amount for each box picked by their workers, which varied depending on whether the subcontractor provided transportation to the farmworkers.

The subcontractors then paid the farmworkers their wages.

II.

PROCEDURAL BACKGROUND The farmworkers filed suit against the growers, Turke and Ag-Tech under the Migrant and Seasonal Agricultural Worker Protection Act,²⁹ U.S.C. §§ 1801-72 (1994) (“AWPA”), and the Fair Labor Standards Act,²⁹ U.S.C. §§ 201-19 (1994) (“FLSA”).

Their complaint alleged that the growers, Turke and Ag-Tech violated the AWPA by failing to keep hourly records, pay unemployment compensation and social security taxes, and pay wages promptly when due, id. §§ 1831(c)(1), (2) & 1832(a), (c).

The farmworkers alleged that the growers also violated the AWPA by using labor contractors to recruit and transport them without reasonably ensuring that the contractors were registered and insured, id. §§ 1841(b)(1)(C) & 1842.

The farmworkers claimed that defendants violated the FLSA by failing to keep hourly records and pay minimum wage, id. §§ 206(a), 211(c).

Defaults were entered against Turke and Ag-Tech for failure to file responsive pleadings.

Following discovery, the parties filed cross motions for summary judgment on the growers’ liability under the FLSA and the AWPA The farmworkers argued that the growers were liable because they, along with Turke and Ag-Tech, were “joint employers” of the farmworkers.

The growers contended that they were not liable because Turke was the farmworkers’ sole employer. The district court granted summary judgment to the growers and denied summary judgment to the farmworkers, finding that there were no genuine issues of material fact and that the growers were entitled to judgment as a matter of law.

See Antenor v. D & S Farms, Inc., 866 F.Supp. 1389 (S.D.Fla.1994).

III.

DISCUSSION A determination of employment status under the FLSA and the AWPA is a question of law subject to our de novo review.

Aimable v. Long & Scott Farms, Inc., 20 F. 3d 434, 440 (11th Cir.), cert. denied, — U.S. -, 115 S.Ct. 351, 130 L.Ed.2d 306 (1994).

Because we are reviewing a summary judgment in favor of the growers, we must determine whether there are genuine issues of material fact and, if not, whether the growers are entitled to judgment on the question of joint employment as a matter of law; stated differently, we must determine whether the evidence and all reasonable inferences therefrom, viewed in the light most favorable to the pickers, support a reasonable conclusion that they were employed by the growers for purposes of the AWPA and the FLSA. See Parks v. City of Warner Robins, GA, 43 F. 3d 609, 612-13 (11th Cir.1995).

To do this, we initially consider the statutory definition of “employ” under the FLSA and AWPA and their legislative history-A.

Statutory Background The FLSA was enacted in 1938 in order to eliminate “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers_”²⁹ U.S.C. § 202(a), (b).

It requires that employers, among other things, keep payroll records and pay employees a minimum hourly wage and overtime.

Id. §§ 201-11.

The AWPA, enacted in 1983, was intended “to assure necessary protections for migrant and seasonal agricultural workers_” Id. § 1801.

Among its provisions, the AWPA requires agricultural employers to register with the government, maintain employment records for workers, and comply with various compensation, housing and transportation provisions.

Id. §§ 1811-44.

The growers’ liability under the FLSA and the AWPA depends on whether they “employed” the farmworkers furnished by Turke.

See id. § 203(d), (e)(1); id. § 1802(2).

Both statutes utilize the same definition of “employ,” so if the growers employed the farmworkers under one statute, they necessarily employed them under the other. Aimable, 20 F. 3d at 440.

In defining “employment” under both statutes, Congress expressly rejected the common-law definition of employment, which is based on limiting concepts of control and supervision.

See Walling v. Portland Terminal Co., 330 U.S. 148, 150-51, 67 S.Ct. 639, 640-41, 91 L.Ed. 809 (1947); Aimable, 20 F. 3d at 439.

Rather, an entity “employs” a person under the FLSA and the AWPA if it “suffers or permits” the individual to work.²⁹ U.S.C. § 203(g); id. § 1802(5).

An entity “suffers or permits” an individual to work if, as a matter of economic reality, the individual is dependent on the entity.

Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 936-37, 6 L.Ed.2d 100 (1961); Aimable, 20 F. 3d at 439.

To assure protection for workers, both statutory schemes make it clear that a worker can be economically dependent on, and thus jointly employed by, more than one entity at the same time.

See 29 C.F.R. § 791.2; id. § 500.20(h)(4).

Thus, the AWPA and the FLSA specifically cover “joint employment” relationships.

The AWPA regulations define “joint employment” as follows: The term joint employment means a condition in which a single individual stands in the relation of an employee to two or more persons at the same time. A determination of whether the employment is to be considered joint employment depends upon all the facts in the particular case.

If the facts establish that two or more persons are completely disassociated with respect to the employment of a particular employee, a joint employment situation does not exist.

Id. § 500.20(h)(4)(i); see also id. § 791.2.

The AWPA’s adoption of the FLSA definition of employment “was deliberate and done with the clear intent of adopting the ‘joint employer’ doctrine as a central foundation of this new statute; it is the indivisible hinge between certain important duties imposed for the protection of migrant and seasonal workers and those liable for any breach of these duties.” H.R.Rep.

No. 97-885, 97th Cong., 2d Sess. (1982) 6, reprinted in 1982 U.S.C.C.A.N. 4547, 4552 (“House Report”).

Previous legislative efforts to protect farm-workers had focused on regulating the crew-leaders who recruited, managed and paid the farmworkers.

Id. at 4547-48.

Those efforts, however, had failed to “reverse the historical pattern of abuse of migrant and seasonal farmworkers,” id. at 4549, primarily because crew leaders were transient and often insolvent, id. at 4548.

Thus, in designing the AWPA, Congress took “a completely new approach,” id. at 4549, making agricultural entities directly responsible for farmworkers who, as a matter of economic reality, depended upon them, even if the workers were hired or employed by a middleman or independent contractor, id. at 4553-54.

Although the AWPA places responsibilities on farm labor contractors as well as on agricultural employers, see 29 U.S.C. §§ 1811^44, “Congress’ plain intent was to protect migrant and seasonal workers from abuse and exploitation, and to hold ‘agricultural employers’ fully accountable as joint employers whenever the facts suggest that liability is fairly imposed.”

Maldonado v. Lucca, 629 F.Supp. 483, 489 (D.N.J.1986). B.

Applicable Caselaw In addition to the legislation, we are guided by a Supreme Court case and three Eleventh Circuit cases that have addressed the statutory definition of employment based upon economic dependence.

In Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947), the Secretary of Labor sued a slaughterhouse operator for FLSA violations arising from its treatment of “boners,” who deboned meat.

Id. at 723-24, 67 S.Ct. at 1473-74.

The operator asserted that it did not “employ” the boners because they were recruited, hired and supervised by a labor contractor who, according to a contract with the operator, was to have “complete control” over the boners.

Id. at 724-25, 67 S.Ct. at 1474.

The Supreme Court held that the “determination of the relationship does not depend on such isolated factors but rather upon the circumstances of the whole activity.”

Id. at 730, 67 S.Ct. at 1477.

In determining whether the operator suffered or permitted the boners to work, the Court emphasized that the boners were “part of the integrated unit of production,” id. at 729, 67 S.Ct. at 1476, because the deboning occurred in the middle of the process of slaughtering the cattle, preparing the meat for deboning, packing it and shipping it, all of which was performed by slaughterhouse employees, id. at 726, 67 S.Ct. at 1475.

The Court also noted that the slaughterhouse, and not the contractor, owned the premises and deboning equipment, and that the work, though skilled, “was more like piecework.”

Id. at 730, 67 S.Ct. at 1477. “Upon the whole,” the Court determined that the slaughterhouse employed the boners for purposes of the FLSA. Id. at 730, 67 S.Ct. at 1477. A year later the former Fifth Circuit decided Fahs v. Tree-Gold Co-op.

Growers of Florida, Inc., 166 F. 2d 40 (5th Cir.1948). A citrus-packinghouse operator employed labor contractors to furnish workers to assemble, label, close and load the boxes in which the citrus fruit was packed.

Id. at 42-43.

The labor contractors were responsible for hiring, firing and supervising their crew members, and establishing their hours and wages.

Id. at 43.

The contractors, who were paid based on the number of boxes handled by their workers, paid their own crew workers.

Id.

The packinghouse operator maintained worker’s compensation insurance to cover the workers.

Id. at 42.

The court concluded that the crew workers, as well as the contractors, were sufficiently dependent on the packinghouse to be considered its employees.

Id. at 43-45.

Looking beyond the formalities of who paid and supervised the workers, the court emphasized that the contractors and crewmembers’ services “constituted a part of an integrated economic unit” controlled by the packinghouse operator; that the premises and all significant investment in tools and facilities were provided by the packinghouse; and that although the packinghouse did not directly control the workers, it asserted control whenever its interests were involved.

Id. at 44-45.

In Hodgson v. Griffin & Brand of McAllen, Inc., 471 F. 2d 235 (5th Cir.), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973), the Secretary of Labor sued a grower for FLSA violations related to its use of harvest workers supplied by labor contractors.

Id. at 235-36.

The growers argued that the labor contractors were the harvest workers’ sole employers.

Id. at 237.

The evidence showed that the contractors hired the pickers, drove them to the fields, directly supervised them and paid them their earnings.

Id. at 236-37.

The evidence also showed, however, that the work occurred on the grower’s premises and that the grower’s foreman decided daily starting times, made field assignments, oversaw the work, told contractors of problems with the workers’ performances and what to pay the workers, and assisted the labor contractors in paying social security taxes.

Id. at 236-37.

Whether the grower was a joint employer of harvest workers, the court explained, “does not depend on technical or isolated factors” or on “the form of the relationship,” id. at 237 (quotation omitted); instead, “it depends ... on the economic reality” of the “circumstances of the whole activity,” id.

Given the “total work arrangement,” the court determined that the grower, along with the contractors, jointly employed the workers and thus was subject to the FLSA. Id. at 238.

In enacting the AWPA, Congress expressly recognized that Griffin & Brand “summarizes the proper approach and the appropriate criteria to be used in making [joint employer] determinations.”

See House Report at 4553.

We most recently considered agricultural joint employment relationships in Aimable v. Long & Scott Farms, Inc., 20 F. 3d 434 (11th Cir.), cert. denied, — U.S. -, 115 S.Ct. 351, 130 L.Ed.2d 306 (1994), which involved claims under both the AWPA and the FLSA. A group of migrant and seasonal agricultural workers sued a farm labor contractor and the grower on whose fields they worked, claiming that the two jointly employed them.

Id. at 437.

Unlike in Griffin & Brand, virtually all direct supervision of the workers in Aim-able was performed by the contractor, who also had the sole power to hire or fire the harvest workers and “exercised absolute, unfettered, and sole control over [the workers] and their employment.”

Aimable, 20 F. 3d at 440-41.

The labor contractor in Aimable also handled all payroll responsibilities, determined the crew’s wage rates, and “made significant investments in equipment and facilities.”

Id. at 440-43.

Under these circumstances, we concluded that the farmworkers were not economically dependent on and therefore were not “employed” by the grower. Id. at 445. C.

Determining Joint Employment Status In Aimable, this court recognized at least eight factors that can be analyzed to determine whether a farmworker furnished by a labor contractor was economically dependent on, and therefore jointly employed by, a grower: (1) the nature and degree of the grower’s control of the farmworkers; (2) the degree of the grower’s supervision, direct or indirect, of the farmworkers’ work; (3) the grower’s right, directly or indirectly, to hire, fire, or modify the farmworkers’ employment conditions; (4) the grower’s power to determine the workers’ pay rates or methods of payment; (5) the grower’s preparation of payroll and payment of the workers’ wages; (6) the grower’s ownership of the facilities where the work occurred; (7) the farmworkers’ performance of a line-job integral to the harvesting and production of salable vegetables; and (8) the grower’s and labor contractor’s relative investment in equipment and facilities.

Id. at440-46.

In applying these factors, we are guided by several principles.

First, the question in “joint employment” cases is not whether the worker is more economically dependent on the independent contractor or the grower, with the winner avoiding responsibility as an employer. As the term “joint employment” suggests, the AWPA “envisions situations where a single employee may have the necessary employment relationship with not only one employer but simultaneously such a relationship with an employer and an independent contractor.”

House Report at 4553.

Thus, rather than comparing the employment relationships in order to exclude one, “[t]he focus of each inquiry ... must be on each employment relationship as it exists between the worker and the party asserted to be a joint employer.”

Id. at 4553-54.

Second, no one factor is determinative.

Rutherford Food Corp., 331 U.S. at 730, 67 S.Ct. at 1477.

As we explained in Aimable, the existence of a joint employment relationship depends on “the ‘economic reality’ of all the circumstances.”

Aimable, 20 F. 3d at 439 (emphasis added); see 29 C.F.R. § 500.20(h)(4)(i) (providing that “determination of whether the employment is to be considered joint employment depends upon all the facts in the particular case”) (emphasis added).

Third, the factors are used because they are indicators of economic dependence.

See Aimable, 20 F. 3d at 439.

They are “aids-tools to be used to gauge the degree of dependence of alleged employees on the business to which they are connected.

It is dependence that indicates employee status.

Each [factor] must be applied with that ultimate notion in mind.”

Usery v. Pilgrim Equipment Co., Inc., 527 F. 2d 1308, 1311 (5th Cir.), cert. denied, 429 U.S. 826, 97 S.Ct. 82, 50 L.Ed.2d 89 (1976).

Thus, the weight of each factor depends on the light it sheds on the farmworkers’ economic dependence (or lack thereof) on the alleged employer, which in turn depends on the facts of the case, see Aimable, 20 F. 3d at 440.

Fourth, a joint employment relationship is not determined by a mathematical formula. “[T]he absence of evidence on any one or more of the criteria listed does not preclude a finding that an ... agricultural employer was a joint employer along with the crewleader.”

House Report at 4553.

The purpose of weighing the factors is not to place each in either the contractor or the grower’s column, but to view them qualitatively to assess the evidence of economic dependence, which may point to both.

See Usery, 527 F. 2d at 1311 (explaining that “the collective answers to all of the inquiries [cannot] produce a resolution which submerges consideration of the dominant factor — economic dependence”).

Fifth, in considering a-joint-employment relationship, we must not allow common-law concepts of employment to district our focus from economic dependency.

See Aimable, 20 F. 3d at 439; House Report at 4553.

Indeed, the “suffer or permit to work” standard was developed to assign responsibility to businesses that did not directly supervise putative employees.

See Rutherford Food Corp., 331 U.S. at 728 & n. 7, 67 S.Ct. at 1476 & n. 7; People ex rel.

Price v. Sheffield Farms-Slawson-Decker Co., 225 N.Y. 25, 121 N.E. 474, 476 (1918).

Thus, our inquiry looks “not to the common law definitions of [employer and employee] (for instance, to tests measuring the amount of control an ostensible employer exercised over a putative employee), but rather to the ‘economic reality1 of all the circumstances concerning whether the putative employee is economically dependent upon the alleged employer.”

Aimable, 20 F. 3d at 439.

Finally, because the FLSA and AWPA are remedial statutes, we must construe them broadly.

See A.H.

Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945) (recognizing that FLSA must be interpreted broadly to effectuate its “humanitarian and remedial” purpose); Caro-Galvan v. Curtis Richardson, Inc., 993 F. 2d 1500, 1505 (11th Cir.1993) (stating that “[b]road construction of the [AWPA] comports with [its] humanitarian purpose to protect all those hired by middlemen to toil in our nation’s fields, vineyards and orchards”) (quotation omitted). D.

Application of Factors to this Case With these principles in mind, we turn to the evidence in this case.

Although we initially consider the factors separately, we ultimately weigh them collectively and qualitatively to determine whether the pickers, notwithstanding any employment relationship with the contractor, were economically dependent on, and therefore jointly employed by, the growers under the FLSA and AWPA 1.

Nature and degree of control of workers The first indicator of joint employment status concerns the “nature and degree of [the growers’] control of the workers.”²⁹ C.F.R. § 500.20(h)(4)(ii)(A).

Such control arises when a grower determines, for example, the number of workers hired for a job, when work should begin on a particular day, which workers should be assigned to specific tasks, and whether a worker should be disciplined or retained.

Aimable, 20 F. 3d at 441.

As noted earlierj the suffer or permit to work/economic dependence standard defines employment in a way that does not depend on the common-law understanding of employment, which was based on limiting concepts of control.

See id. at 439.

Nevertheless, a grower’s control of farmworkers does shed some light on economic dependence.

The evidence indicates that the growers exercised control over the farmworkers in several ways.

First, the growers told Turke how many farmworkers to bring each day.

Second, the growers’ foremen, rather than Turke, determined the precise moment when picking would commence each day.

Third, the growers were free to directly delay or stop the workers from continuing their work.

For example, when new immigration laws that required increased worker documentation went into effect, the growers stopped the harvest to verify that Turke and his workers were in compliance with the laws, and they did not allow work to resume until Turke demonstrated their compliance the following day.

Finally, the growers had the ability indirectly to assign work to specific workers.

During the 1986-87 season, for example, they moved the pickers from one row to another and from one plot to another by assigning their own tomato-picking crews to pick plots and rows that were being picked by the farmworkers.

Compare Griffin & Brand, 471 F. 2d at 237-38 (finding that farmer exercised a “degree of apparent on-the-job control” over workers by “tell[ing] the erewleaders at what hour to begin work”) with Aimable, 20 F. 3d at 440-41 (concluding that contractor had “absolute, unfettered, and sole control” over farmworkers). 2.

Degree of supervision of the work The second factor bearing on joint-employment status is the “degree of supervision [by the grower], direct or indirect, of the work.”²⁹ C.F.R. § 500.20(h)(4)(ii)(B).

Somewhat similar to the previous factor, such supervision includes overseeing the pickers’ work and providing direction.

Aimable, 20 F. 3d at 441.

This factor, like the growers’ control over the workers, has more to do with common-law employment concepts of control than with economic dependence.

Indeed, the “suffer or permit to work” standard was developed in large part to assign responsibility to businesses which did not directly supervise the activities of putative employees.

Rutherford Food Corp., 331 U.S. at 728 & n. 7, 67 S.Ct. at 1476 & n. 7; Sheffield Farms-Slawson-Decker Co., 121 N.E. at 476.

Nevertheless, a grower’s supervision of farm-workers, like a grower’s control of them, provides some guidance to our inquiry.

In considering this factor, “special aspects of agricultural employment [must] be kept in mind.”

House Report at 4554.

When unskilled labor is utilized in an agricultural setting, for example, the grower is not expected to look over the shoulder of each farmworker every hour of every day.

Thus, “[i]t is well settled that supervision is present whether orders are communicated directly to the laborer or indirectly through the contractor.”

Aimable, 20 F. 3d at 441 (citing Griffin & Brand, 471 F. 2d at 238).

In this case the evidence reflects that the growers supervised the pickers in substantial ways.

In addition to telling them when picking could begin and distributing the boxes, the growers’ field workers directly oversaw and intervened in the pickers’ work, both directly and indirectly, on a daily basis.

Turke testified to the growers’ oversight and direct intervention as follows: Q.

And what would these D & S Farms people do? A.

They would walk around and make sure the baskets were full, make sure the quality control was there, no trash in the baskets.

If there was a problem, they’d bring it to our attention. Q.

Did you ever see the D & S Farms employees talk directly to the workers or try to show them what they were doing wrong? A.

Yes.

Yes. Q.

Did that happen very often? A.

Day to day.

They couldn’t hardly be out there without it.

Turke also testified that the growers would complain to him “that the job was not going fast enough.”

We find this supervision more substantial than the “infrequent assertions of minimal oversight” by the grower in Aimable, 20 F. 3d at 441, where the grower’s employees, “except on rare occasions, left supervision and oversight of [the farmworkers] entirely to [the contractor] and his crew” and “rarely provided any direction to [the farmworkers’] work,” id.

In contrast to this “de minimis” supervision, id., the growers in the present case oversaw and directly intervened in the pickers’ work on a daily basis.

See Griffin & Brand, 471 F. 2d at 238 (finding joint employment where farmer’s field supervisors regularly gave instructions to crew leaders who passed them on to workers); Haywood v. Barnes, 109 F.R.D. 568, 590 (E.D.N.C.1986) (finding joint employment based in part on regular supervision). 3.

Right to. hire, fire, or modify employment conditions The third indicator of joint employment is the growers’ “right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers.”²⁹ C.F.R. § 500.20(h)(4)(ii)(D).

In this case, the evidence indicates that the growers had the power to “veto” Turke’s hiring decisions and to modify employment conditions such as the hours the pickers worked.

For example, the growers themselves monitored the workers’ job qualifications rather than relying on Turke to do so when they stopped work until they could verify compliance with the new immigration laws.

Additionally, as discussed above, the growers dictated the workers’ hours, a condition of employment, by deciding when the work was to begin, by forcing the pickers to stop picking when prices were bad, and, during the ’86-’87 season, by sending their own tomato-picking crews into fields assigned to the farmworkers, causing them to run out of work by noon.

Compare Aimable, 20 F. 3d at 442 (finding no dependence where grower never dictated hours employees could work) with Griffin & Brand, 471 F. 2d at 237 (finding dependence where business decided daily starting times).