DECISION and ORDERJURISDICTION By order filed November 21, 2018 (Dkt. 11), Hon. Lawrence J. Vilardo referred this case to the undersigned for all pretrial matters. It is presently before the court on Plaintiffs’ request pursuant to Fed.R.Civ.P. 56(d)(2) to conduct limited discovery necessary to enable Plaintiffs to oppose Defendants’ motion for summary judgment filed December 18, 2018 (Dkt. 15) (“Plaintiffs’ Request”).BACKGROUNDPlaintiffs, residents of Puerto Rico,1 commenced this action by filing the Complaint on September 14, 2018 as a collective and class action alleging Defendants’ violations of the Migrant and Seasonal Agricultural Workers Protection Act of 1983, 29 U.S.C. §§1801 et seq. (“the AWPA”), the Immigration and Nationality Act of 1952, 8 U.S.C. §1101, et seq. (“the INA”), the Fair Labor Standards Act of 1938, 29 U.S.C. §201, et seq. (“the FLSA”), and New York Labor Law §191, et seq. (“the NYLL §__”). The AWPA grants an aggrieved person a cause of action in District Court for redress of violations of the AWPA, 28 U.S.C. §1854(a); the FLSA grants a similar right to aggrieved parties for redress of violations of its provisions. 29 U.S.C. §216(b). The NYLL also provides for similar relief. N.Y. Labor Law §197. Plaintiffs’ state claims in this court are based on supplemental jurisdiction under 28 U.S.C. §1367.In particular, Plaintiffs allege, as a First Cause of Action, Defendants violated the AWPA by (1) failing to provide in 2017 and 2018 truthful and accurate information to Plaintiffs as domestic agricultural workers regarding wages and working arrangements at Defendants’ vegetable farm in violation of 29 U.S.C. §1821(f), (2) failing to pay Plaintiffs $12.38 per hour during the 2017 growing season in violation of 29 U.S.C. §1822(a), (3) reducing Plaintiffs’ working hours while providing greater working hours to foreign, i.e., Mexican workers hired pursuant to Defendants’ H-2A Clearance Orders,2 (“H-2A workers”) in violation of 29 U.S.C. §1822(a), (4) failing to reimburse Plaintiffs for travel expenses to and from Defendants’ farm in Eden, New York as required by 20 C.F.R. §655.122(h), (5) denying Plaintiffs of agreed upon housing arrangements located on Defendants’ farm by displacing Plaintiffs with the Mexican H-2A workers Defendants had imported during the 2017 growing season in violation of 20 C.F.R. §655.122(a), (6) denying Plaintiffs access to drinking water and proper toilet facilities during working hours which Defendants made available to Defendants H-2A workers during the 2017 growing season in violation of 20 C.F.R. §655.122(a).Plaintiffs’ Second Cause of Action asserts a breach of contract based on Defendants’ failure to pay Plaintiffs’ the required Adverse Effect Wage Rate (“AEWR”) for Plaintiffs’ corresponding work during 2017, reimburse Plaintiffs for their travel expenses and otherwise provide terms and conditions of employment to Plaintiffs required by Defendants’ 2017 and 2018 Clearance Orders for Defendants’ H-2A workers. Plaintiffs allege such contract is imposed by the Clearance Orders under 8 U.S.C. §1188 (“§1188″) and 20 C.F.R. Part 501 or 20 C.F.R. Part 655 subpart B. Plaintiffs’ Third Cause of Action is based on Defendants’ alleged violation of the FLSA for failure to pay Plaintiffs the required federal minimum wage resulting from Defendants’ failure to pay Plaintiffs’ transportation expenses from Puerto Rico to the farm. Plaintiffs’ Fourth Cause of Action is based on Defendants’ alleged violations of the New York Labor Law, particularly N.Y. Labor Law §191 (failure to pay wages when due) and N.Y. Labor Law §195[1], [3] (failure to provide written accurate notice in English and Spanish of the applicable minimum hourly wage and changes to employer provided housing arrangements.Plaintiffs served their First Set of Interrogatories and Document Requests on November 26, 2018 seeking detailed information from Defendants regarding Plaintiffs’ claims for the class period of September 2012 to September 2018. Defendants responded by filing, on December 18, 2018, Defendants’ motion for summary judgment together with support affidavits and exhibits (Dkts. 17, 18, 19, 20 and 21), a Statement of Material Facts (Dkt. 16) and a Memorandum of Law (Dkt. 22) requesting the action be dismissed. On the same date, Defendants also filed, pursuant to Fed.R.Civ.P. 26(c), a motion for a stay of discovery and a request for an expedited hearing on Defendants’ motion for a stay (Dkt. 23). On January 12, 2019, the court stayed further action on Defendants’ motion for a stay pending oral argument on that motion which it scheduled for January 22, 2019. Plaintiffs’ opposition was filed January 9, 2019 (Dkt. 44, 44-1); Defendants’ Reply Affidavit (Dkt. 47) was filed January 17, 2019. Following oral agreement, the court reserved decision; on February 7, 2019 the court issued a Decision and Order granting Defendants’ motion for a stay and directed that Plaintiffs either request discovery pursuant to Fed.R.Civ.P. 26(d)(2) or respond to Defendants’ summary judgment motion (Dkt. 55).Plaintiffs served their First Set of Interrogatories and Document Requests on November 26, 2018 seeking detailed information from Defendants regarding Plaintiffs’ claims for the class period of September 2012 to September 2018. Defendants responded by filing, on December 18, 2018, Defendants’ motion for summary judgment together with support affidavits and exhibits (Dkts. 17, 18, 19, 20 and 21), a Statement of Material Facts (Dkt. 16) and a Memorandum of Law (Dkt. 22) requesting the action be dismissed. On the same date, Defendants also filed, pursuant to Fed.R.Civ.P. 26(c), a motion for a stay of discovery and a request for an expedited hearing on Defendants’ motion for a stay (Dkt. 23). On January 12, 2019, the court stayed further action on Defendants’ motion for a stay pending oral argument on that motion which it scheduled for January 22, 2019. Plaintiffs’ opposition was filed January 9, 2019 (Dkt. 44, 44-1); Defendants’ Reply Affidavit (Dkt. 47) was filed January 17, 2019. Following oral agreement, the court reserved decision; on February 7, 2019 the court issued a Decision and Order granting Defendants’ motion for a stay and directed that Plaintiffs either request discovery pursuant to Fed.R.Civ.P. 26(d)(2) or respond to Defendants’ summary judgment motion (Dkt. 55).By papers filed February 15, 2019, Plaintiffs filed the Affidavit of Robert McCreanor in support of Plaintiffs’ request for discovery under Rule 50(d) (Dkt. 57) together with Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Request (Dkt. 58). On March 12, 2019, Defendants filed Defendants’ opposition to Plaintiffs’ Request which included the Affidavit of Daniel M. Henry (Dkt. 63) attaching Exhibits A (Dkt. 63-1) and B (Dkt. 63-2 (“Henry Affidavit Exhs.___”),3 the Affidavit of Nelson Leon (Dkt. 64) (“Leon Affidavit”), Attorney Affidavit of Chaim J. Jaffe, Esq. (Dkt. 65) (“Jaffe Affidavit”) and Defendants’ Memorandum in Opposition to Plaintiffs’ Request (Dkt. 66) (“Defendants’ Memorandum”). Oral argument on Plaintiffs’ Request was deemed unnecessary.FACTS4Defendants operate a family-owned 300-acre vegetable farm, established in 1888, which annually produces approximately eight (8) million pounds of produce. To achieve this production, Defendants, of necessity, have hired seasonal workers from Puerto Rico for over 30 years to engage in planting, harvesting and packaging for marketing the vegetables grown at the farm. Recently, expanded production at the farm together with the physically demanding nature of agricultural work created a shortage of manpower unavailable from Puerto Rico with which to work the farm with the result that in 2016 Defendants were unable to harvest hundreds of thousands of pounds of produce creating a serious threat to the farm’s financial viability. In response to these economic developments Defendants elected to utilize the federal government’s socalled H-2A program through which non-U.S. residents, in this case Mexican workers, could be certified as necessary to Defendants’ business allowing such H-2A workers to enter the United States and work at Defendants’ farm. Although under federal law such workers received a higher hourly wage, $12.38 per hour in 2017, than the otherwise required New York State minimum wage of $9.70 per hour, Defendants’ entry into the H-2A program was deemed by Defendants a matter of business necessity despite the higher hourly wages the H-2A program mandated. Beginning in April 2017, Defendants filed, on April 11, 2017 and May 23, 2017, applications for H-2A workers for the 2017 growing season, May through October, for a total of 58 H-2A workers. Henry Affidavit Exhs. A and C, Dkt. 17-1 and 3. These requests were approved by the U.S. Department of Labor (“U.S. DOL”) on May 10, 2017 and July 18, 2017, respectively. Henry Affidavit, Dkt. 17, Exhs. B and D (Dkt. 17-2 and 4). On April 23, 2018, Defendants submitted another request for 64 H-2A workers for the 2018 growing season, Henry Affidavit, Dkt. 17 Exh. E (Dkt. 17-5), which was approved on May 18, 2018. Henry Affidavit, Dkt. 17 Exh. F (Dkt. 17-6). Defendants retained MAS Labor H-2A, LLC (“MAS Labor”) as its agent for all aspects of the H-2A program, in particular for assistance and compliance with the recruitment and advertising requirements for H-2A employers. Defendants’ activities to communicate to potential domestic workers seasonal work opportunities on the farm including cooperation with the New York State Workforce Agency (“SWA”) were intended by Defendants to comply with H-2A requirements established by 20 C.F.R. §655.153. In support of Defendants’ summary judgment motion, Defendants submitted copies of an advertisement which ran in New York, Pennsylvania and New Jersey, and letter communications directed to Defendants’ former seasonal domestic employees, Defendants’ recruitment results logs, identifying persons who applied to Defendants, Defendants’ related hiring decisions and results, along with certifications of Defendants’ recruitment efforts to the U.S. DOL. Henry Affidavit, Dkt. 17 20, referencing Henry Affidavit Exhs. G, H and I (Dkt. 17-7, 8, 9). Copies of the four letters Defendants sent to each Plaintiff’s address, as well as other former domestic workers, are attached as Henry Affidavit Exh. I (Dkt. 17-9). In response to Plaintiffs’ objection that Defendants’ exhibit do not include actual copies of each addressee’s letter, Dkt. 58 at 15, and accounts for only 31 of 52 individuals to whom Defendants sent such four letters, Defendants explain that after each letter was prepared on Defendants’ word processor, the addressee’s name and address were then deleted from the addressee field and the next addressee name and address were inputted. Dkt. 63 at 9 (f). Defendants also explained that proof of mailing exists for only 31 addressees as the remaining 21 persons were then employed at the farm or had previously communicated with Defendants regarding the subject matter in the letters rendering the mailing unnecessary. Dkt. 63 at 9 (f). Defendants also provided copies of the 2017 certified letter mailings to Defendants’ former domestic workers including those sent to Plaintiffs Kidanny Josue Martinez Reyes and Hector Ivan Burgos Rivera. Henry Affidavit Exh. I (Dkt. 17-9). Defendants also provided copies of similar proof of such mailings for 2018 to several of Defendants’ domestic workers (Dkt. 63-9), and to several other of Defendants’ domestic workers (Dkt. 63-1 Exh. 1).Defendants further represent each domestic worker including Plaintiffs, prior to their hiring in 2017, was informed in both English and Spanish of the availability of H-2A work and the related AEWR pay rate for 2017 of $12.38 per hour and were given the opportunity to read the H-2A Clearance Order describing the approved agricultural work available to be performed, advising that if a worker declined H-2A work, he could be employed in non-H-2A work at $9.70 per hour in Defendants’ packinghouse or field greenhouse. Henry Affidavit Dkt. 17 26. Each Plaintiff signed a written acknowledgement, dated June 14, 2017, of having been advised of these facts and declining Defendants’ offer of H-2A work. Id. Exh. K5 at Dkt. 17-11 at 2 (Kidanny Josue Martinez); Exh. K at 3 (Hector Ivan Burgos Rivera); Exh. K at 4 (Edwin Cosme Colon); Exh. K at 5 (Rolando Diaz-Reyes); Exh. K at 6 (Jose A. Garcia Marrero). As a result, Plaintiffs as well as Defendants’ other domestic workers, with the exception of Justo Santiago, a non-party, were assigned to Defendants’ packinghouse or field greenhouse. Henry Affidavit
24, 25-26 (Dkt. 17). In response to Plaintiffs observation that although Defendants provided such documentation for Plaintiffs, Defendants did not include any other similar documentation for other domestic workers, Defendants provided additional copies of similar documents for 38 non-Plaintiff domestic workers. Dkt. 63-2.Defendants also submitted copies of employee, including for those for Plaintiffs, payroll records for the 2017 and 2018 growing seasons. Henry Affidavit, Exh. M (Dkt. 17-13). For 2017, Defendants’ domestic workers were paid the New York state minimum hourly wage of $9.70; H-2A workers received the required H-2A 2017 pay rate of $12.38 per hour. Henry Affidavit Dkt. 17 30. For 2018, because Defendants’ Clearance Order for Defendants’ H-2A workers covered the same scope of work, i.e., including both planting and harvesting of crops, as that performed by Defendants’ domestic workers, all of Defendants’ seasonal employees received the AEWR rate of $12.83 per hour for the 2018 season. Id. at 31. Copies of the 2017 payroll records for Defendants’ domestic workers, including Plaintiffs, were provided by Defendants, Henry Affidavit Dkt. 17 Exh. O, and for H-2A workers as Exh. Y. These records indicate all of Defendants’ employees’ wages were paid on a weekly basis. Dkt. 17 36. Copies of Plaintiffs’ “weekly wage statements” for 2017, Henry Affidavit 36 (Dkt. 17), were provided by Defendants as Exh. v. (Dkt. 17-22); the 2017 Time Reports, Henry Affidavit 37 (Dkt. 17),6 which includes a description of the type of work, such as harvesting, performed by Defendants H-2A workers is provided under Exh. X to the Henry Affidavit. Dkt. 17-24-32. The Time Reports for Defendants’ H-2A workers for 2018 are provided in Exh. Y. Dkt. 17-34-40. No Time Reports, as referenced by Mr. Henry, for Defendants domestic workers including Plaintiffs, is provided for 2017.According to Defendants, Employee Time Card Records indicate that in 2017 Defendants’ domestic workers averaged 54.56 hours per week; Defendants H-2A workers averaged 49.66 hours. Henry Affidavit Dkt. 17 at 37. For 2018, Defendants domestic workers averaged 63.94 hours per week; Defendants H-2A workers averaged 60.24 hours. Id. As to Plaintiffs, Defendants state, Henry Affidavit 38 (Dkt. 17), that based on Plaintiffs’ Time Card Records, (Exh. W, Dkt. 17-23), Plaintiff Diaz Reyes’s average work hours in 2017 were 50.97 hours; Plaintiff Burgos Rivera worked an average of 50.20 hours per week; Plaintiff Garcia Marrero worked an average of 53.71 hours per week; Plaintiffs Cosme Colon averaged 49.41 hours per week; and Plaintiff Martinez Reyes averaged 56.91 hours per week. Dkt. 17 38.Defendants also aver that Plaintiffs were provided with copies of English and Spanish versions of a Pay Notice and Work Agreement for Farm Workers (“Work Agreements”) required by the New York State Department of Labor, stating Plaintiffs’ pay rate of $9.70 per hour for work that included planting and harvesting vegetables, and which each Plaintiff signed. Henry Affidavit Dkt. 17 35. As indicated, supra, at 8, Plaintiffs declined H-2A work and were assigned to work in Defendants’ packinghouse or field greenhouses. Henry Affidavit
