The defendant operated a business converting raw manure from feedlots into organic fertilizer. Two employees brought a lawsuit claiming that the defendant and his business violated the Fair Labor Standards Act (FLSA) by failing to pay them overtime wages for time worked in excess of 40 hours during a given week. 29 U.S.C. § 207(a)(1). The defendants moved for summary judgment arguing that the plaintiffs were engaged in “agricultural employment” and thus exempt from FLSA’s overtime payment requirement. Id. at § 213(b)(12).

Agricultural employment includes farming in both the traditional and secondary sense. To show that the plaintiff’s work falls with the secondary sense, the defendant has the burden of showing that the plaintiff’s work was “(1) performed by a farmer or on a farm, and (2) incident to or in conjunction with such farming operations.” Pacheco v. Whiting Farms, Inc., 365 F.3d 1199, 1205 (10th Cir. 2004).

In their motion, the defendants claimed that the business raised livestock and that the plaintiffs prepared “a by-product for market of that farming operation.” The court found that this was a conclusion and did not establish the type of work the plaintiffs performed. Similarly, the motion did not address whether the defendants’ operations were incidental to the farming operation. Because the defendants failed to meet their burden, the court denied the motion for summary judgment.

Porter v. T.J. Crowder and Sons, LLC, 2023 WL 4899551 (D. Col. July 31, 2023).