760 F2d 126 Donovan v. Brandel

760 F.2d 126

27 Wage & Hour Cas. (BN 392, 104 Lab.Cas. P 34,747

Raymond J. DONOVAN, Secretary of Labor, United States
Department of Labor, Plaintiff-Appellant,
Jerry BRANDEL, Individually, and d/b/a Jerry Brandel Farms,
et al., Defendants-Appellees.

No. 83-1228.

United States Court of Appeals,
Sixth Circuit.

April 30, 1985.

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Before KENNEDY and JONES, Circuit Judges, and CHURCHILL, District judge.*



The Court not having favored rehearing en banc in this case, the petition for rehearing is referred to our panel for disposition.


The petition for hearing states that the appeal involves the following issue:


Whether a panel of this Court erred in holding that migrant farm workers' children under 12 years of age were not employees of the farm owner when they harvested his pickle crop, so that the children were denied the protection of the Fair Labor Standards Act's prohibition against oppressive child labor.


This issue involving the relationship between the appellee and children under 12 years of age if the parent is an independent contractor was never raised nor considered by the trial court nor by the panel, [736 F.2d 1114 (6 Cir.1984) ], and it is in appropriate for consideration at this stage of the appeal.


Upon consideration, IT IS ORDERED that the petition for rehearing be and hereby is denied. The Court's decision is without prejudice to such new issue.


Judge Jones would grant rehearing on the issue of whether the pickle pickers are "employees" of Brandel Farms for the purposes of the FLSA.

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Honorable James P. Churchill, United States District Court, Eastern District of Michigan, sitting by designation