R. ALEXANDER ACOSTA, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee,
PARAGON CONTRACTORS CORPORATION; BRIAN JESSOP, individually, Defendants-Appellants, and JAMES JESSOP, individually, Defendant.
from the United States District Court for the District of
Utah (D.C. No. 2:06-CV-00700-TC)
J. Sutherland (M. Christopher Moon, with him on the briefs),
of Jackson Lewis PLLC, Salt Lake City, Utah, for
Van Buren, Counsel for Child Labor and Special FLSA Projects
(Nicholas C. Geale, Acting Solicitor of Labor; Jennifer S.
Brand, Associate Solicitor, and Paul L. Frieden, Counsel for
Appellate Litigation, with her on the brief), United States
Department of Labor, Washington, D.C., for
LUCERO, BACHARACH, and MORITZ, Circuit Judges
BACHARACH, Circuit Judge.
case arises out of a 2007 injunction, which prohibited
Paragon Contractors Corporation and its president (Mr. Brian
Jessop) from engaging in oppressive child labor. The
Department of Labor procured a contempt citation, with the
district court finding that Paragon and Mr. Jessop had
violated the injunction by employing children to harvest
pecans. For this violation, the district court sanctioned
Paragon and Mr. Jessop by
appointing a special master to monitor Paragon's ongoing
compliance with the injunction and
ordering Paragon and Mr. Jessop to pay $200, 000 into a fund
to compensate the children.
and Mr. Jessop appeal the contempt finding and the sanctions.
We conclude that the district court did not err in
finding that Paragon and Mr. Jessop had violated the
injunction by oppressively employing children and
ordering Paragon and Mr. Jessop to pay $200, 000. But we
reverse the district court's appointment of a special
The Use of Children to Gather Pecans and the Subsequent
Southern Utah Pecan Ranch owned over 100 acres of pecan trees
in Utah. Through 2007, the Ranch had an informal arrangement
with the Fundamentalist Church of Jesus Christ of Latter-Day
Saints. After the Ranch harvested pecans from the trees, the
Church could send community members to gather the pecans that
had fallen to the ground. The gatherers consisted largely of
children, who gave half of the fallen pecans to the Church
and half to the Ranch.
2008, the Ranch began a series of year-long contracts with
Paragon. Under these contracts, Paragon obtained
responsibility for operating the pecan grove and harvesting
the pecans. Paragon received 70% of the proceeds from the
sale of the pecans, and the Ranch received 30%.
Paragon was to manage the pecan grove, the Church continued
to send children to gather the fallen pecans. Paragon hired
Mr. Dale Barlow to fulfill the contract with the Ranch. The
Church identified Mr. Barlow as the contact person for the
gathering operation, and he participated in organizing and
managing the Church's efforts to gather the fallen
2012, the Department of Labor investigated Paragon and Mr.
Jessop, concluding that they had violated the child-labor
provisions of the Fair Labor Standards Act, 29 U.S.C. §
212. This conclusion led the Department of Labor to allege a
violation of the 2007 injunction. This allegation ultimately
led to the finding of contempt.
Did Paragon and Mr. Jessop violate the 2007
and Mr. Jessop deny violating the 2007 injunction. On this
issue, we review the district court's ruling for an abuse
of discretion. United States v. Ford, 514 F.3d 1047,
1051 (10th Cir. 2008). The court abuses its discretion by
relying on an error of law or reaching a clearly erroneous
finding of fact. Id.
prevail, the Department of Labor needed to prove by clear and
convincing evidence " that a valid court order
existed,  that the defendant[s] had knowledge of the
order, and  that the defendant[s] disobeyed the
order." F.T.C. v. Kuykendall, 371 F.3d 745,
756-57 (10th Cir. 2004) (en banc) (quoting Reliance Ins.
Co. v. Mast Constr. Co., 159 F.3d 1311, 1315 (10th Cir.
1998)) (alterations in original). Paragon and Mr. Jessop do
not dispute the first two elements, focusing instead on the
2007 injunction prohibited Paragon and Mr. Jessop from
employing minors "under conditions constituting
oppressive child labor." Appellant's App'x at
17. Paragon and Mr. Jessop do not question the oppressiveness
of the labor. Instead, they make two arguments:
1. The children were not covered by the Fair Labor
Standards Act because they were volunteers rather than
2. Even if the children were employees, they were not
Paragon's employees; therefore, Paragon and Mr. Jessop
are not responsible for the employment of the children. We
reject both contentions.
A. Were the children volunteers?
first question is whether the children were volunteers rather
than employees. We review de novo the district court's
determination that the children were "employees, "
which presents an issue of statutory interpretation.
Johns v. Stewart, 57 F.3d 1544, 1557 (10th Cir.
statutory definition of "employee" is "any
individual employed by an employer." 29 U.S.C. §
203(e)(1). And "employ" is defined as "to
suffer or permit to work." Id. § 203(g).
These definitions are "exceedingly broad." Tony
and Susan Alamo Found. v. Sec'y of Labor, 471 U.S.
290, 295 (1985).
and Mr. Jessop contend that the children are not covered by
the Fair Labor Standards Act based on (1) the Supreme
Court's opinion in Tony and Susan Alamo Foundation v.
Secretary of Labor, 471 U.S. 290 (1985), and (2) the
statutory food-bank exception, 29 U.S.C. § 203(e)(5). We
reject both contentions.
1. Are the children covered under
the Fair Labor Standards Act based on Alamo
Alamo Foundation, the Supreme Court discussed the
scope of the Fair Labor Standards Act's coverage of
employees. The Court noted that the scope of
"employee" is "exceedingly broad" but
does contain limits. 471 U.S. at 295. For example, the
definition of an "employee" does not include
"[a]n individual who, 'without promise or
expectation of compensation, but solely for his personal
purpose or pleasure, worked in activities carried on by other
persons[.]'" Id. (quoting Walling v.
Portland Terminal Co., 330 U.S. 148, 152 (1947)).
and Mr. Jessop use this definition, arguing that the children
were not "employees" because
. they had no reason to expect compensation and
. they worked "solely for [their] personal purpose or
Id. According to Paragon and Mr. Jessop, the
children freely chose to gather pecans in order to help the
Church and the community. Paragon and Mr. Jessop point to
testimony from some of the children that they viewed
themselves as volunteers and chose whether to participate in
district court disagreed, relying instead on testimony
characterizing the children's participation as mandatory.
Some children and parents testified that
. the children had been ordered to attend the harvest and
. the Church had closed the schools when it was time to
harvest the pecans.
addition, one child stated that if she had not worked, she
would have lost her family and been kicked out of the
community. Likewise, parents testified that they had sent
their children to the harvest because of pressure from the
Church, and one father expressed fear that his family would
be separated if he had disobeyed. In light of the testimony,
the district court's finding of coercion was not clearly
erroneous. Given this finding, we conclude that the children
did not choose to work for their own "personal purpose
or pleasure"; they worked because of coercion.
and Mr. Jessop respond that even if the children had been
coerced, the coercion had come from the Church rather than
Paragon. But the Alamo Foundation standard does not
address the source of the coercion. Alamo Foundation
states only that individuals working for their own
"personal purpose or pleasure" are not covered by
the Fair Labor Standards Act. Id. (quoting
Walling v. Portland Terminal Co., 330 U.S. 148, 152
(1947)). Under this standard, the children were not gathering
pecans solely for their own personal purpose or pleasure.
Therefore, Alamo Foundation does not
2. Does the food-bank exception apply?
and Mr. Jessop also invoke 29 U.S.C. § 203(e)(5), known
as the "food-bank exception, " which precludes
consideration as "employees" when workers
"volunteer their services solely for humanitarian
purposes to private non-profit food banks and . . . receive
from the food banks groceries." Based on this statute,
Paragon and Mr. Jessop argue that the children gathered
pecans for the benefit of the Bishop's Storehouse of the
Church. For this argument, we may assume (without deciding)
that the Bishop's Storehouse constitutes a non-profit
food bank. See Susan Harthill, Shining the
Spotlight on Unpaid Law-Student Workers, 38 Vt. L. Rev.
555, 582 (2014) ("[I]n amending [the Fair Labor
Standards Act] . . ., Congress chose to only exempt
volunteers at food banks and not any other type of nonprofit
volunteer."). Even with this assumption, the argument
would fail because the children did not "volunteer"
Fair Labor Standards Act does not define the term
"volunteer." We therefore consider the term's
ordinary meaning. See Conrad v. Phone Directories
Co., 585 F.3d 1376, 1381 (10th Cir. 2009). Dictionaries
provide a helpful basis for determining this meaning.
Jones v. C.I.R., 560 F.3d 1196, 1201 (10th Cir.
2009). The term "volunteer" is commonly defined as
an offer to work without solicitation, compulsion,
constraint, or influence of another. Webster's Third New
International Dictionary 2564 (1993); see also The
American Heritage Dictionary of the English Language 1941-42
(5th ed. 2011) (defining "volunteer" as "[t]o
give or offer to give voluntarily" and
"voluntary" as "[d]one or undertaken of
one's own free will").
discussed above, the district court reasonably found that the
children had not volunteered to gather pecans. Therefore, the
food-bank exception does not apply.
and Mr. Jessop criticize the use of dictionary definitions to
interpret the word "volunteer, " asserting that the
Supreme Court already interpreted the word in Alamo
Foundation. This criticism is misguided. Alamo
Foundation's definition encompassed the same concept
but did not address the term "volunteer" or refer
to that term as it is used in the Fair Labor Standards Act.
See Tony and Susan Alamo Found. v. Sec'y of
Labor, 471 U.S. 290, 295 (1985). In any event, we have
concluded that Alamo Foundation does not preclude
characterization of the children as employees.
* * *
conclude that the children were "employees, "
subjecting their employer to the requirements of the Fair
Labor Standards Act.
Who employed the children?
the children as employees does not end the inquiry. Paragon
and Mr. Jessop argue in two ways that even if the children
had been employees, the employer would have been the Church
or Mr. Barlow rather than Paragon:
1. Paragon's contract with the Ranch did not extend to
the gathering of pecans from the ground; therefore, Paragon
and Mr. Jessop did not employ the children.
2. Mr. Barlow was an independent contractor; therefore, he
alone was responsible for the children's employment.
Did the contract cover gathering pecans from the
Paragon and Mr. Jessop argue that the contract served only to
obligate Paragon to harvest the pecans from the trees. Under
this argument, the contract did not govern what happened
after the pecans had been harvested from the trees. This
argument, if credited, would relieve ...