Su v. Berkshire Nursery & Supply Corp.

Defendants in Contempt for Noncompliance with Consent Order Termination Notice Provision

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OPINION AND ORDER Plaintiff, Acting Secretary of Labor Julie A. Su (the “Acting Secretary”), brings this action against defendants Berkshire Nursery and Supply Corp. (“Berkshire”) and Jesus Flores, Berkshire’s president, alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §201 et seq. Plaintiff alleges defendants obstructed an investigation by the U.S. Department of Labor’s Wage and Hour Division (“WHD”) and retaliated or threatened to retaliate against employees for participating in the investigation. (See Doc. #1 (“Compl.”)

31-39). On February 6, 2023, the Court entered a Consent Order for Preliminary Injunction in this matter. (Doc. #24 (the “Consent Order”)). Before the Court is plaintiff’s motion to hold defendants in civil contempt for their alleged noncompliance with the Consent Order, and for sanctions. (Doc. #54). For the reasons set forth below, plaintiff’s motion is GRANTED IN PART and DENIED IN PART. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §1331. BACKGROUND Berkshire is a business located in Patterson, New York, that sells plants and gardening supplies in its retail nursery and also performs off-site construction and landscaping work for its customers. Flores is Berkshire’s president and oversees its operations. Plaintiff alleges both defendants are employers within the meaning of the FLSA. See 29 U.S.C. §203(d). In November 2022, WHD commenced an investigation of defendants’ labor and employment practices — in particular, their compliance with the FLSA and the H-2A provisions of the Immigration and Nationality Act, 8 U.S.C. §1101 et seq. (the “INA”).¹ In connection with this investigation, WHD visited Berkshire’s worksite and provided defendants with information about the FLSA’s anti-retaliation provisions. According to plaintiff, shortly after the investigation commenced, defendants began intimidating their employees, specifically instructing them “to lie or not speak to WHD’s investigators.” (Compl.

Su v. Berkshire Nursery & Supply Corp.

Defendants in Contempt for Noncompliance with Consent Order Termination Notice Provision

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