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By Jordan Allyn, Yakima Herald-Republic

A federal judge in Seattle heard arguments Friday about farmworker wages in Washington state.

Farmworker union Familias Unidas por la Justicia AFL-CIO, which is based in Skagit County, is seeking a temporary injunction against the U.S. Department of Labor over the wage rules for foreign guest workers who are a part of the federal H-2A program. The union wants to reinstate the 2020 prevailing wages and change new survey regulations to ensure that more data is used.

U.S. District Court Judge John H. Chun said he would issue a decision on the request in the next week.

The H-2A program allows employers to bring foreign workers to the U.S. to fill temporary agricultural jobs and is supposed to ensure that foreign labor will not hurt the wages of U.S. workers. Wages set through the H-2A program can have an effect on pay to domestic workers.

Farmworkers also sued the federal government in 2020 over wage surveys and pay rates.

“The Department of Labor has been suppressing wages for farmworkers for nearly a decade, and they tried to fix that, and now they've made an even worse mess of it,” said union attorney Kathy Barnard prior to the hearing. “We need to get that fixed.”

In its response, the Department of Labor said the union waited until the eve of Washington cherry harvest to file the action and unsuccessfully challenged the same requirements in an earlier lawsuit in the Eastern District of Washington.

The case could have consequences for this year's harvest season. Depending on the decision, growers with H-2A employees might be required to offer updated rates. The union also requested a pause on certifying any new H-2A orders in Washington until the Department of Labor has carried out its duty to protect the wages and working conditions of U.S. workers.

Pay rates

Friday's discussion in court revolved around the standard wage offered to H-2A workers. Employers pay either the program’s minimum wage, also known as the adverse effect wage rate (AEWR), or the prevailing wage, which is specific to each crop and can be tied to piece-rates. The law requires that growers must pay whichever option is higher in each given year.

Many prevailing wages are piece-rate wages, which are based on the pound or bin of fruit. Piece-rate wages allow skilled workers to make significantly more money than the minimum hourly wage. Many farmworkers depend on piece-rates in the harvest season to make up for less available work in the winter.

In court Friday, Assistant U.S. Attorney Brian Kipnis said that the notion that piece-rates are dependably higher than the adverse effect wage rate is only an assumption since the new rates have not been issued yet.

“There’s no facts that that can be based upon,” he said.

Columbia Legal Services attorney Andrea Schmitt, who is representing farmworkers in the case, said growers are incentivized to eliminate piece rates to save money. The piece-rate has historically been higher than the AEWR rate and continues to grow each year, she said.

In a written declaration, farmworker Maria Ruiz from Quincy reported earning up to $39 an hour last fall paid at a piece rate — more than double the H-2A minimum wage. But since employers can pay H-2A workers less money for the same work, her salary becomes affected by the changing labor market.

“If you earn more than $17.97 at the piece rate, they lower the prices on you, or they put a lot of pressure on you because they think you are earning too much – like by sending people to look for flaws in the apples you are picking,” Ruiz wrote.

In its filing, the Department of Labor said the primary benefit of piece-rate wages is to employers who can get their crops harvested and sold faster. Because of that, employers have an incentive to offer piece rates.

Prevailing wages are calculated based on surveys administered by the Washington State Employment Security Department (ESD). The survey solicits responses from agricultural employers across the state. ESD uses the data it collects to calculate prevailing wages, which act as wage guarantees under the H-2A program.

Timing

The current H-2A wage for Washington is $19.25, the Department of Labor said in its filing. The ESD submitted a 2023 prevailing wage survey, which is under review.

FUJ’s complaint alleges that new Department of Labor regulations, from November 2022, unreasonably changed how survey responses were translated into prevailing wages. FUJ argues that the new regulations lead to fewer prevailing wage findings. This leads to lower wages for H-2A workers, and thereby lower wages for all farmworkers in Washington.

“It's really important to take into account how they're doing their data gathering because the way that they do determines the livelihoods for hundreds of thousands of farm workers in the United States,” said Edgar Franks, the political director for Familias Unidas por la Justicia.

The Department of Labor found prevailing wages which applied to H-2A labor contracts in 2022. However, it withdrew those wage guarantees in January 2023. They have not been replaced, but the Department of Labor says it is currently working with ESD to publish new prevailing wages based on last year’s survey. The ESD declined to comment on the ongoing litigation.

Washington Farm Labor Association CEO Enrique Gastelum wrote in an email to the Herald-Republic that Familias Unidas’ requests “could have far-reaching detrimental social and economic negative impacts.” He said that not certifying new H-2A orders and changing the worker rates this harvest would disrupt growers’ plans and could leave crops unpicked.

A change to wage rates this year "is concerning given the poor market conditions tree fruit saw this last year. Any unexpected upward pressure of wage rates would exasperate an already economically stressed food system," he said.

In court, Kipnis said the union is not following proper legal procedure and should have objected previously during the rule-making period. Kipnis wrote in his response that the union deliberately filed at the start of cherry season to rush the legal process and skip the record review stage. He declined further comment after the hearing.

In an interview after the hearing, Schmitt noted that issue but said “that doesn't deprive a federal court of its jurisdiction to stop irreparable harm.” Schmitt added, “and to stop it from happening now rather than in many months when the merits of this case will actually be resolved. So not only is it appropriate for us to be seeking this emergency relief. It's the perfect scenario in which to do it.”