Does worm farming count as “agriculture” under the Fair Labor Standards Act?

Barks v. Silver Bait, LLC, No. 15-5175 (6th Cir. Oct. 2, 2015).

A commercial worm farm

The Fair Labor Standards Act, or FLSA, was enacted as part of the Second New Deal. It establishes a national minimum wage and a forty-hour work week. If employees work more than forty hours, the employer must pay them time-and-a-half for their overtime hours.

But the FLSA also exempts certain occupations and industries from these requirements. One of these exemptions is for those “employed in agriculture.” The FLSA defines agriculture as “farming in all its branches,” and gives a few examples: the “cultivation and tillage of the soil,” dairy farms, the raising of “livestock, bees, fur-bearing animals, or poultry,” and the production of “any agricultural or horticultural commodities.”

The question here is whether defendant Silver Bait’s vermiculture operations count as “agriculture.

Silver Bait imports baby worms from Europe, puts them in big “worm houses,” and feeds them with a corn-based mixture. Once the worms reach sexual maturity, Silver Bait harvests them, packs them in bait cups, and sends them off to anglers. A number of Silver Bait employees have sued it under the FLSA, claiming that theyre owed overtime. Silver Bait argues that its exempt because its workers are employed in agriculture.

The Sixth Circuit holds that Silver Bait’s operations do count as agriculture. To be sure, worm farming, at least as Silver Bait practices it, doesn’t fall within most of the explicit examples that the statute gives. It’s not the “cultivation and tillage of the soil.” It’s certainly not dairy farming. Neither is it the raising of “livestock, bees, fur-bearing animals, or poultry”: Worms are not winged or furry or feathery, and “livestock” refers to traditional farm animals.

But does vermiculture count as the production of “agricultural or horticultural commodities”? Worms aren’t horticultural. Whether their production is “agricultural” depends on what “agriculture” is in the first place. So this statutory example just throws us back to the dispute over what “agriculture” means. 

So what does “agriculture” mean? We know from the statute that it means “farming in all its branches.” And the raising and growing of bait worms “shares much in common with traditional farming,” the Sixth Circuit notes, since both traditional and worm farming involve the raising of animals for sale as a commodity. The animals here will be eaten by fish, not people, but that doesn’t matter. After all, a significant portion of the soybeans and corn grown in the United States goes to feed animals. 

True, the FLSA enumerates the “farming of any kind of fish” as a separate exemption from “agriculture,” which might lead you to think that “agriculture” encompasses only the most traditional farming. But the Sixth Circuit—following the Department of Labor, the NLRB, and several other courts—disagrees with that inference, and concludes that both fish and worm farming qualify as agriculture under the FLSA.