NEW YORK – The U.S. District Court for the Southern District of New York has issued a temporary restraining order prohibiting a Patterson nursery and garden supply business, and its president from threatening its employees and obstructing a U.S. Department of Labor investigation.
In November 2022, the department’s Wage and Hour Division began an investigation of Berkshire Nursery & Supply Corp. and Jesus Flores, its president, to ensure compliance with the Fair Labor Standards Act and the H-2A provisions of the Immigration and Nationality Act.
Over the next several weeks, the department alleges, Flores harassed and intimidated employees repeatedly. He threatened workers and their families with physical harm, deportation and blacklisting. Flores also instructed them to lie and provide false information to division investigators.
In response, the department’s Office of the Solicitor obtained a temporary restraining order from the court on Jan. 18, 2023. The court’s order forbids Flores and Berkshire Nursery & Supply Corp. from doing the following:
Violating the FLSA’s anti-retaliation provisions.
Harming and threatening harm, termination, blacklisting of future employment; contacting immigration authorities or other law enforcement; withholding wages or reducing hours; intimidating, coercing, threatening or retaliating or discriminating against their employees in any other way to prevent or dissuade them from participating in the department’s investigation or in any other FLSA-protected activity.
Obstructing and interfering, in any way, with the division’s investigation.
Telling any workers not to cooperate with investigators, instructing them to provide incomplete or false information or questioning them about their cooperation or communications with investigators.
Communicating with any employee regarding the investigation without first informing the employee that they may communicate with investigators voluntarily and free from coercion and not be discriminated against for doing so.
The court also requires the employers to do the following:
Permit division representatives to read aloud – in English, Spanish and any other language understood by the majority of employees – a statement describing employees’ FLSA rights during their paid working hours and in the presence of the defendants. The employers must also mail a written statement of the same to current and former employees.
Provide a written notice to the Wage and Hour Division at least seven days prior to termination of an employee for any reason.
“To determine an employer’s compliance with the law, the U.S. Department of Labor’s Wage and Hour Division must be able to gather information from the employer and employees. Employers who attempt to obstruct investigations or intimidate employees to stop their cooperation will not succeed,” said Wage and Hour Division District Director Jay I. Rosenblum in Albany, New York.
View the order and the complaint.
“The threats by Berkshire Nursery & Supply Corp. and its president to intimidate workers and obstruct the department’s investigation are illegal and reprehensible. Federal law protects workers’ rights to participate in an investigation without fear of threats to them and their families or other forms of reprisal. In cases like these, the U.S. Department of Labor will pursue every legal remedy to ensure workers feel safe to speak freely and truthfully with the department’s investigators,” said Regional Solicitor of Labor Jeffrey S. Rogoff in New York.
The division’s White Plains area office is conducting the investigation. Senior Trial Attorney Amy Tai of the regional Office of the Solicitor in New York is litigating the case for the department.
Learn more about how the Wage and Hour Division protects workers against retaliation.
The FLSA requires that most employees in the U.S. be paid at least the federal minimum wage for all hours worked and overtime pay at not less than time and one-half the required rate of pay for all hours worked over 40 in a workweek.
Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division. Employers and workers can call the division confidentially with questions regardless of their immigration status. The department can speak with callers confidentially in more than 200 languages through the agency’s toll-free helpline at 866-4US-WAGE (487-9243).
Walsh v. Berkshire Nursery & Supply Corp. and Jesus Flores.
Civil Action No. 23-cv-275 (S.D.N.Y.):