Tuesday, April 13, 2021
April 13, 2021

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Federal judge’s ruling grants relief on farmworker wages

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YAKIMA — A federal judge has partially granted a farmworkers union’s request for relief from recently published wage data the union said would have led to a drastic drop in earnings.

U.S. District Judge Sal J. Mendoza ruled that the U.S. Department of Labor must use 2020 prevailing wages and conduct a new wage survey. Such wages are used by agricultural employers to determine wages for foreign workers working in agricultural jobs through the H-2A program.

Mendoza ruled that recently published prevailing wages from the U.S. Department of Labor were based on “methodologically unsound” employer survey data and would likely cause irreparable harm to farmworkers.

In December, Familias Unidas por la Justica, or FUJ, a Burlington-based farm union and its president and farmworker Ramon Torres filed suit against the U.S. Department of Labor. In their complaint, FUJ argued the exclusion of most piece-rate wages in recently published data, based on a wage survey data from 2019, would cause a significant cut in farmworker wages. Torres and the union sought a 5% increase from 2020 prevailing wages, which used wage survey data from 2018.

“Our clients are thrilled with it,” said Andrea Schmitt, staff attorney with Columbia Legal Services, which represented FUJ and Torres. “What the judge is doing is preventing the U.S. Department of Labor from rubber-stamping this survey that was deeply flawed. It would have taken millions out of the pockets of farmworker families.”

The U.S. Department of Labor did not immediately respond to a request for comment. In a hearing on Feb. 18, Assistant U.S. Attorney John Drake argued that FUJ was “comparing apples to oranges,” stating that while the piece rate allows employees to make more money, employers still have to pay H2-A workers what is called the Adverse Effect Wage Rate, or AEWR. In Washington state, the 2021 AEWR rate is at $16.34.

But for Schmitt, the prevailing wages are essential as they’re used for specific jobs, such as harvesting cherries. FUJ’s concern was the elimination of most piece rates, and the use of a guaranteed wage — which employers said was the state’s minimum wage rate at the time in many cases — would lead to a double-digit percentage drop in wages.

Washington state is “one of the few states that consistently has the prevailing piece rates that are significantly higher than the AEWR,” Schmitt said. “What we’re fighting for in our case is to protect that set of wages that the AEWR doesn’t help with.”

Mendoza’s ruling said there were flaws in the wage survey, which was conducted by the state Employment Security Department and whose data was sent to the U.S. Department of Labor. One issue was asking employers to differentiate piece wages with and without an hourly guarantee without explaining the concept of an hourly guarantee. Mendoza said that likely resulted in incorrect responses.

Mendoza noted that some employers, likely because they didn’t understand the hourly guarantee, put down the minimum wage, which is well below the AEWR, the minimum employers must pay to foreign workers in the H-2A program.

Mendoza also took issue with the exclusion of worker survey data, which showed that an overwhelming number of workers — and average of 86% and upwards of 95% for some crops — were paid a piece rate rather than an hourly wage and that piece-rate wages were the prevailing practice in Washington’s tree fruit industry.

“This stark contrast with the employer survey further calls into question the certified prevailing wages,” Mendoza said.

Mendoza acknowledged the 2020 prevailing wages also were flawed since they were based on surveys that also used the “hourly guarantee” language. However, he said they were a starting point while a new survey is conducted.

Mendoza did not grant the FUJ’s request for an automatic 5% increase in wages, stating that while wage increases averaged around 5%, the year-to-year increase varied from 2% to 8%, indicating several different factors that influence an increase in wages.

Schmitt said using 2020 prevailing wage rates will not harm farmworkers as much as using the recently published wages. She also said a properly conducted survey would show the predominant use of piece rates and preserve farmworkers’ means to earn higher wages in specific jobs, such as picking cherries.

Mendoza ruled that a new survey must be done within a reasonable time but didn’t require a specific date. Schmitt said she hopes that a new survey could be done before the cherry harvest in the summer, where workers would benefit significantly from using new wage survey data.

Monday’s ruling is one of several recent rulings in favor of farmworkers and their wages. Late last year, a U.S. District Court judge in California ruled that the U.S. Department of Agriculture could not suspend its farm labor report, which is used to set minimum wages for H-2A guest workers. A second federal court ruling stated that the U.S. Department of Agriculture could not move ahead with its freeze of the AEWR for 2021 and 2022.

Schmitt noted that judges recognized the poverty of farmworkers in both the California cases and her case. She also noted that Mendoza took note that farmworkers in Washington state were disproportionately impacted by the COVID-19 pandemic.

“The judges in both cases had recognized that you do irreparable harm when you deprive them even a percentage of wages,” she said. “The judges recognized the extreme poverty farmworkers already live in. That’s part of why they’re willing to give (relief).”

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