¶1Before KENNEDY and JONES, Circuit Judges, and CHURCHILL, District Judge.*
¶3ORDER
¶4The Court not having favored rehearing en banc in this case, the petition for rehearing is referred to our panel for disposition.
¶5The 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.
¶6This 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.
¶7Upon 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.
¶8Judge Jones would grant rehearing on the issue of whether the pickle pickers are “employees” of Brandel Farms for the purposes of the FLSA.