Foreign guest or H-2A workers at Washington’s tree-fruit orchards will get paid more under a federal court ruling issued earlier this month, in the latest development in a yearslong court battle over how foreign agricultural workers are paid.
Under the ruling from the U.S. District Court in Seattle in the case brought by Familias Unidas por la Justicia, or FUJ, a Burlington-based farmworkers union, the U.S. Department of Labor will reinstate prevailing wages set in 2022.
FUJ first sued the U.S. Department of Labor in 2020 over the agency’s switch to fixed hourly wages from piece rates, where workers are paid by how much they pick. The union argued the change in DOL policy caused a significant reduction in workers’ pay. The union filed a new suit in May after finding that revisions to prevailing wage practices for H-2A workers in 2022 did not solve the problem.
While FUJ continues pursuing its lawsuit, DOL will reinstate the piece rates set in 2022 for H-2A employees or temporary agriculture workers picking Washington’s cherry, apple, pear and berry harvests.
While the data used to set the 2022 rates is several years old — it’s based on wage surveys conducted in 2020 — it is still an improvement, with farmworkers making at least $30 to $35 an hour on average vs. $19.25 an hour, the current minimum hourly rate for H-2A workers, said Andrea Schmitt, an attorney with Columbia Legal Services, a Seattle-based firm that represents FUJ.
The lawsuit argued that establishing an hourly pay system for these workers didn’t make sense as piece rates have been the industry norm for many decades.
“The plaintiff has shown that farmworkers in Washington, including its members, will suffer irreparable injury,” Judge John H. Chun wrote in his ruling. “The declarations make clear that Washington farmworkers earn more wages when working at a piece-rate pay system versus an hourly pay system and that these workers rely on these wages to survive.”
The use of the H-2A program, in which agricultural producers bring workers from abroad to fill gaps in the local workforce, has increased substantially in recent years. In 2022, 33,049 agricultural visas were issued — a 366% increase in the past decade, according to state Employment Security Department figures. With foreign guest workers making up a significant portion of the agricultural workforce, prevailing rates for H-2A workers also impact how domestic agricultural workers are paid.
“Prevailing wages is important because it protects local workers against massive depression of their wages,” Schmitt said.
The lawsuit continues, and addressing the other claims made by the union in its lawsuit will take time. The court declined to take immediate action on other issues, including how wage surveys are conducted and used by the DOL to set rates and whether the DOL properly vets wage data.
Edgar Franks, FUJ’s political director, said the union currently negotiates wages for the workers it represents by doing a test pick. After the test, growers and workers come to an agreement on wages after measuring how much workers picked.
Most workers — especially H-2A workers — aren’t in any position to negotiate rates or unionize, so they wanted to address problems with the prevailing wage process to ensure proper pay. Franks said they do whatever they can to make sure all workers are paid well.
While advocates celebrated the ruling, industry officials expressed concerns.
The ruling will create additional uncertainty for growers already dealing with other changes in labor costs, including a 40-hour work week under the state’s agricultural overtime law that went into effect this year and other new wage rules for H-2A workers expected in the coming months, said Jon DeVaney, president of the Washington State Tree Fruit Association.
DeVaney also said he is concerned with using 2022 wages as they were based on 2020 wage data for harvest activity likely impacted by the COVID-19 pandemic. “It’s procedurally suspect to us,” he said. “It’s not representative of market conditions now.”
DeVaney said he also is concerned that growers’ labor costs for H-2A workers will constantly change under court action. “We [would] much rather see the process be open and above board,” he said.
Growers want the flexibility to choose between a piece rate and an hourly wage to reflect the kind of work being done. For example, Red Delicious apples take less work to pick, so paying the 2022 prevailing piece rate — $28.26 per bin — may be an overpay for that variety. Growers may have to reconsider picking those varieties if it cannot make back any extra costs.