Worm Farm Employees under FLSA Agriculture Exemption for Overtime


Recently, in the case of Barks v. Silver Bait, LLC, Case No. 15-5175 (6th Cir. Oct. 2, 2015), the Court was faced with a novel question to decide whether a farm for worms that are to be primarily used as bait fell within the definition of agriculture and will it be exempted from FLSA’s requirements.


The case involved a collective class of 11 workers working at Silver Bait farm in rural Tennessee houses that grew and packaged bait worms for sale directly to retailers claiming overtime. The workers on the farm placed baby worms on the bed, fed them and eventually harvested them for delivery to the bait shops.


29 U.S.C. § 207 states that overtime should be paid to workers who work for more than 40 hours in a workweek. Concurrently, there are exceptions laid down in 29 U.S.C. § 213 that exempts certain establishments from paying overtime to its workers. One of such exemptions is given in 29 U.S.C. § 213(b)(12) stating that for employees employed in agriculture, overtime shall not be payable. What lied before the court was determination of the definition of term “agriculture” whether it included worm farming in its ambit when its definition included everything from “tillage of soil” to the “raising of bees”. An investigation was conducted by Department of Labor into labor practices of Silver Bait and ultimately found out that the farm employees’ fall within the agriculture exemption, hence, disqualified from being paid overtime.


Several workers filed a private action in the District Court wherein it was ruled after a two day bench trial that the exemption applies to which the plaintiffs later appealed. The Sixth Circuit was to define the broadly construed term, “agriculture”. Agriculture as defined by FLSA in 29 U.S.C. § 203(f) is of two types: primary and secondary. Primary agriculture means farming in all its branches whereas secondary agriculture includes non-farming activities in conjunction with primary agriculture. Exemption has been expanded to include pine straw and Christmas trees; gathering of wild commodities like mosses, wild rice or trapping of wild animals does not fall within the exemption.

The court has diligently and beautifully stated that the definition of “agriculture” cannot be frozen in time and not include other activities; that the raising and growing of bait worms shares much in common with traditional farming and does not deprive them of their agricultural character. Housing the worms, feeding them, monitoring their growth and harvesting them clearly signify the acts and process used in agriculture. Thus, the Sixth Circuit held that worm farming operation is sufficiently covered in agricultural exemptions and workers do not hold a claim under FLSA for overtime.


Although this decision serves as facilitation and accords a great deal of security to the agricultural employers by including them in the exemption, all the activities would not be covered under it. For instance, office workers and salesman would not be a part of the exemption and be eligible to claim overtime.

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