When the U.S. Department of Labor began investigating Berkshire Nursery & Supply Corp. last November the owner of the Putnam County business allegedly told employees that their families in Mexico would be harmed by a cartel if they cooperated with the probe.
On Jan. 12 the Labor Department accused Berkshire and owner Jesus Flores of retaliation and obstruction.
Immediately after the investigation began to determine compliance with federal worker protection laws, according to the complaint filed in U.S. District Court, White Plains, Berkshire and Flores “embarked on a campaign of obstruction, witness intimidation and retaliation designed to prevent employees from asserting their rights … and to frustrate the department’s investigation.”
Flores and Berkshire did not reply to emails asking for their side of the story.
Berkshire employs seasonal agricultural workers from Mexico under the H-2A visa program for the nursery business in Patterson.
Last October, two former workers sued Flores and Berkshire under the federal Trafficking Victims Protection Act. They had been approved under the H-2A visa program to work 40 hours a week on agricultural jobs, the complaint states, but Flores made them work up to 12 hours a day, seven days a week, and diverted them to construction and landscaping jobs for a side business, Rosa Contracting Inc. of New Rochelle.
When they complained, Flores allegedly threatened to deport them and to use his connections in Mexico to intimidate the workers’ families.
The men fled the compound in Patterson where they were housed and contacted the state Department of Labor.
Flores and Berkshire have not answered the October lawsuit.
The federal Labor Department’s Wage and Hour Division in White Plains opened an inquiry, and on Nov. 9 investigator Giselle Alarcon requested documents, inspected the housing and interviewed employees.
After she left, Flores instructed employees to lie or not speak with investigators, according to the complaint, and said he knows where their families live and he had connections with a Mexican cartel.
Before Alarcon returned on Nov. 14 for a scheduled discussion with Flores, he allegedly warned employees that they would be deported unless they lied about their duties and hours worked.
Alarcon came back again on Nov. 21, this time without advance notice, and was able to obtain partial information from some employees.
The next day, Flores allegedly threatened to harm the families of employees who spoke to Alarcon.
In early December, according to the complaint, he repeated his claim of cartel connections and threatened, “I will make you pay for what you say.”
He commented about the former employees who had sued him in October and said they are now “in a place they belong,” the complaint states, and warned that anyone who speaks to the Labor Department will face the same consequences.
Flores nephew allegedly told employees that in the previous work season his uncle had sent someone from the cartel to assault a former employee who had filed a complaint.
The Labor Department complaint does not say whether any current employees or their families have actually been physically harmed. But the threats were effective.
“Employees are scared to speak with investigators and cooperate with the Department’s ongoing investigation,” Alarcon states in an affidavit. Flores’ conduct “has made it much more challenging for me to investigate and learn the truth from employees.”
The complaint accuses Flores and Berkshire of retaliation and obstruction under the federal Fair Labor Standards Act. The Labor Department is asking for a restraining order to stop the defendants from interfering with the investigation or from threatening, harming, firing or blacklisting anyone.
A hearing is scheduled for Jan. 31 before U.S. District Judge Vincent L. Briccetti.
