Providing legal scholars nationwide a unique opportunity to opine on worm-farming, the Sixth Circuit Court of Appeals held on Friday, October 2, that farm workers involved in the growing of bait worms are exempt overtime under the Fair Labor Standards Act (FLSA). The Silver Bait farm in rural Tennessee houses, grows and packages bait worms for sale directly to retailers. Workers on the farm place baby worms onto beds, feed the worms and eventually harvest them for delivery to bait shops.

The FLSA requires employers to pay covered workers overtime for time worked in excess of forty hours in a workweek. However, there are several exemptions for specific occupations and industries. One of those exemptions is for an “employee employed in agriculture.” 29 U.S.C. § 213(b)(12). The statute defines agriculture to cover everything from “tillage of the soil” to the “raising of bees.” The Department of Labor had investigated Silver Bait’s labor practices and ultimately determined that the farm employees were within the agriculture exemption and therefore, not entitled to overtime. Several of the farm workers filed a private action alleging that the worm farm operations actually did not meet the exemption and they sought the unpaid overtime. After a two-day bench trial, the district court agreed that Silver Bait’s operation met the exemption. The Plaintiffs appealed.

The Sixth Circuit noted that exemptions to the FLSA are narrowly construed against the employers seeking to assert them. With regard to the agriculture exemption, the court had to determine what was included within the broad statutory definition. Under the FLSA case law, agriculture is divided into two categories: primary and secondary.

Primary agriculture is defined as “farming in all its branches,” while secondary agriculture are practices that are in conjunction with primary agriculture, but are non-farming activities. The FLSA lists certain examples under each category. The Department of Labor has stated that the harvesting of certain horticultural commodities such as fruits, vegetables, tobacco and nursery products may qualify for the exemption. That exemption has been expanded to pine straw and Christmas trees. However, the Department does not count the gathering of wild commodities such as mosses, wild rice or trapping of wild animals as meeting the exemption. So, where does worm farming fit in?

The Court’s opinion holds that Silver Bait’s raising and growing of bait worms shares much in common with traditional farming. While it recognized that worms are not “a traditional farm animal,” there is nothing to suggest that the definition of farming should be “frozen in time.” The Court went on to find that the worms’ intended use as bait does not “deprive them of their agricultural character.” It was significant to the court that Silver Bait housed the worms, fed them, monitored their growth and eventually harvested them (they actually compared the worms to Christmas trees—has to be a first in a legal opinion). Based on this analysis, the Sixth Circuit held that the worm farming operation fit under the agricultural exemption and the workers did not have a claim for overtime under the FLSA.

While the opinion does raise a chuckle, it also illustrates to agricultural employers the amount of scrutiny that courts are giving the exemption. Farms should not feel overly confident that because they feel that the exemption is broad their operation would automatically qualify. Agricultural employers should also note that not all of their workers might be engaged in activities that meet the exemption. Office workers and salesmen may not be able to meet the criteria necessary to take them outside of the overtime exemption.