Farmworker Justice joined this action in 2021, which challenges the Department of Labor’s procedures for conducting prevailing wage surveys in agricultural employment. For decades, payment of cherry, apple, and pear harvest workers in Washington state has been based on piece rate compensation. This practice benefits both the growers and farmworkers, because piece rate compensation rewards farmworkers who work assiduously to pick as many fruit as they can by paying them well above the minimum wage, and simultaneously ensuring that highly perishable crop are picked on time, thus rewarding growers by maximizing their profit margins. The case challenged the employer practice of falsely interjecting hourly-wage guarantees tied to lower statutory minimum wage rates to undermine the piece rate compensation system under the Administrative Procedure Act (APA), as well as the Department of Labor’s arbitrary failure to utilize worker surveys to verify statements of wage rates indicated by employers. Finally, the lawsuit contested the Department of Labor’s allegedly unlawful practice of certifying H-2A job orders which promised to pay on an hourly Adverse Effect Wage Rate (AEWR), even when there is a higher established prevailing piece rate for the same crop activity. The lawsuit argued that these three factors violated the limits on the H-2A program: that the employment of foreign migrant agricultural workers should only be used as needed, and if used, should not adversely affect the wages or employment of U.S. workers. Co-counseling with FJ in the case are Columbia Legal Services and Iglitzin & Lavitt, P.A., a union-side labor law firm based in Seattle, WA. In July of 2023, the state workforce agency (SWA) released its 2023 prevailing wage rate survey results. Subsequent thereto, DOL moved to dismiss the majority of Plaintiffs’ existing claims, claiming that the claims had been rendered moot by the SWA’s newly conducted survey and its survey results. Unfortunately, the District Court found in favor of the United States Department of Labor on nearly all causes of action, except for Plaintiffs’ AEWR-only claim. The District Court granted final judgment in the favor of United States Department of Labor on the Plaintiff’s only remaining claim. Plaintiffs promptly filed their notice of appeal, and the United States Court of Appeals for the Ninth Circuit agreed to expedite the appeal. On May 24, 2024, Plaintiffs received a favorable opinion from the 9th Circuit finding that the U.S. Department of Labor (DOL) has a legal duty to protect domestic farmworker wages in Washington State and require agricultural employers to offer the highest wage in contracts related to the federal H-2A program. The ruling overturns an order issued by a federal district court and agrees with FUJ’s allegation that DOL has been rubber-stamping federal H-2A contracts with low, hourly wages instead of requiring growers to offer higher prevailing wages, as outlined by federal statute. The faulty way that DOL determined and published wage data for the past 13 years resulted in incorrect findings that have brought down wages for both H-2A and domestic farmworkers. DOL admitted during the appeal that it had been following illegal policy since 2011 but had never publicly announced its policy until recently. With its ruling, the Ninth Circuit ordered the District Court to enter an injunction that excludes the unlawful lower wages from DOL’s annual wage survey that sets required wages for the H-2A program. On July 31, 2024, the 9th Cir. Ct. of Appeals issued a formal Mandate of the May 24 opinion. On July 2, 2024, FUJ obtained an order for preliminary injunction ordering the DOL to reinstate higher piece rate wages for Washington’s cherry, berry, apple, and berry harvests covering all H-2A contracts in Washington state.

In December of 2020, Farmworker Justice along with co-counsel Earth Justice, representing several farm worker advocacy organizations, challenged the Environmental Protection Agency’s decision in December 2020 to weaken the Application Exclusion Zone, a specific regulation included in the Worker Protection Standards on pesticide usage and application, which is key to protecting against pesticide spray drift. In January, of 2021, the United States District Court for the Southern District of New York issued a temporary restraining order and the government agreed to an extension of the bar against the new regulation. In March 2023, the Environmental Protection Agency published a notice of proposed rulemaking which sought to reinstate the more worker-friendly Application Exclusion Zone regulations , providing the relief the plaintiffs sought in their lawsuit. The notice of the proposed rule represents a significant victory for farmworkers and their families who often are at risk of exposure to toxic pesticides.In October 2024, the Final Rule, which adopted the March, 2023 rules without revision, was published in the Federal Register.

In these two parallel cases where a growers association and a farm labor recruitment organization have challenged the Department of Labor’s newly promulgated regulation which revises the methodology for calculating the adverse effect wage rate (AEWR) to be paid to H-2A workers and domestic workers in corresponding employment. In relevant part, the new rule bases the determination of the wages paid to H-2A workers and their domestic counterparts who perform non-crop care or livestock related work on the Occupational Employment Wage Statistics (OEWS) survey instead of the Department of Agriculture’s Farm Labor Survey (FLS). The result in the changed methodology is that the wages of H-2A workers performing non crop care or livestock related work, but who instead perform work incidental to a farming operation, such as construction (building of barns and fences), truck drivers hauling grain or farm commodities, or agricultural machinery mechanics, will be determined through a survey, the OEWS, which compares the wages of these workers who perform incidental farm labor with all workers in similar occupations in the United States, rather than applying the same wage rates applicable to other farmworkers engaged in dissimilar activities. The difference in the wage rates as established between these two methodologies can amount to as much as $7/hour for a given H-2A worker. Farmworker Justice along with Public Citizen has submitted an amicus curiae brief in each case in support of the Department of Labor’s defense of its newly promulgated rule. In their brief, amici argue that reversion to the determination of wages of these non-traditional farmworkers based upon the Farm Labor Survey will lead to a depreciation of domestic workers within their respective industries and violate the guiding principle underlying the H-2A program: that the introduction of foreign guest workers should not adversely effect the wages or working conditions of U.S. workers. On March 29, 2024, the District Court, adopting the Magistrate’s Report and Recommendation in FGA v. Su, rejected the grower plaintiffs’ argument that the new AEWR methodology creates an attractive wage in violation of the INA. On February 24, 2025, the Fourth Circuit, in an unpublished opinion, upheld the district court decision. In its opinion, the court cited our amicus brief in support of its decision.

State Attorney Generals, joined by a grower and growers’ association, challenged the new H-2A rule published earlier this year in Kansas v. DOL, which was filed in the Southern District of Georgia. On July 16, Farmworker Justice, represented by FarmSTAND, filed a brief as a Friend of the Court, or Amicus Curiae. Plaintiffs sought a preliminary injunction halting the effective date of the new rule,claiming that the DOL lacked rulemaking authority and that the new rule violated the National Labor Relations Act. The court determined that the Final Rule did not exceed the rulemaking authority of the agency but accepted the Plaintiffs’ contention that it violated the NLRA, for purposes of granting the preliminary injunction on August 26, 2024. The DOL filed a Motion for Reconsideration, which was denied. Summary judgment motions were filed in late October by the parties, and Farmstand filed a responsive amicus brief on behalf of FJ on Oct. 30. FJ, through Farmstand, has also sought intervention or filed amicus briefs in similar lawsuits brought in other jurisdictions.