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By Don Jenkins, Capital Press

A farmworker union has asked U.S. District Judge John Chun in Seattle to cancel visas for thousands of foreign workers recruited for 2025 fruit harvests in Eastern Washington.

Familias Unidas por La Justicia alleges the U.S. Department of Labor violated an order Chun issued in July that made committing to pay piece-rates a condition for farmers to hire workers through the H-2A visa program.

The Labor Department denies the allegation. A federal judge in Kentucky ruled in November the department can't require farmers to guarantee piece-rates, the department contends.

Familias attorney Andrea Schmitt of Columbia Legal Services said Jan. 2 that jobs guaranteeing only an hourly wage are less attractive, discouraging U.S. farmworkers from applying and manufacturing a labor shortage.

"We've said this is urgent, absolutely. We want to get a ruling as quickly as possible," she said.

The Labor Department has accepted dozens of applications for workers from Washington farms guaranteeing $19.82 an hour, the minimum H-2A wage, according to department records. Many applications say piece-rates are possible, but make no commitments.

Many farmers pay piece-rates, but making them pay piece-rates would have far-reaching ramifications, Worker and Farm Labor Association CEO Enrique Gastelum said.

Some varieties need to be sorted and picked carefully to preserve quality, he said. "They can't have bad fruit in the bin," he said.

Conflicting rulings

The department argues the applications conform with a decision by U.S. District Judge Danny Reeves in Lexington, Ky. Reeves ruled farmers can pay hourly wages or piece-rates, whichever suits their interests.

The ruling apparently conflicts with Chun's order last summer. Chun ruled withholding piece-rates harms farmworkers.

The Labor Department told Chun that Washington's prevailing piece-rates had expired. Chun ordered the department to use the old piece-rates until the department came up with new ones.

Schmitt complained in early December the Labor Department wasn't following Chun's order and was approving applications for foreign farmworkers from orchards only guaranteeing an hourly wage. 

U.S. attorneys Tessa Gorman and Brian Kipnis told Schmitt in a letter in mid-December that Reeves' ruling means the department can't reject an application because the farmer only commits to an hourly wage.

The department's "hands are tied in this matter," the attorneys wrote.

Current prevailing piece-rates in Washington are $28.26 for a bin of apples and 21 cents for a pound of cherries. Piece-rates pay better than the hourly wage, according to farmworker statements submitted by Familias.

Judge Reeves said farmers had many good reasons for paying hourly wages, instead of piece-rates. Reeves struck down several other H-2A regulations adopted by the Biden administration.

The Labor Department sets H-2A wages to prevent foreign farmworkers from lowering pay for U.S. workers. The department certified more than 35,000 openings for foreign farmworkers in Washington in 2024, the fourth-most among all states.