TORRES & FAMILIAS UNIDAS POR JUSTICIA V. UNITED STATES DEPARTMENT OF LABOR, CASE NO. 1:20-CV-03241-SMJ (E.D. WASHINGTON 2021)

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.

Labor

COLORADO LIVESTOCK ASSOCIATION VS. POLIS NO. 2024CA1153 (Colorado Court of Appeals)

In August 2023, an organization representing several ranchers in the state of Colorado, the Colorado Livestock Association (“CLA”), filed a lawsuit against the state of Colorado and the Colorado Department of Labor and Employment, alleging that the camp access provisions of the newly enacted SB 21-87 (“Farmworker Bill of Rights”) amounted to an unconstitutional taking of private property. The Farmworker Bill of Rights enshrines the right of access of key service providers, including legal aid attorneys, health and welfare workers and union organizers to speak to farmworkers outside of their work locations on a limited basis and creates a right of access to the workers on employer property only in emergency situations. Farmworker Justice joined Towards Justice and FarmSTAND in representing Colorado Legal Services in this case. In 2024, the District Court denied the Colorado Livestock Association's (CLA) bid to topple the state law. The court held that CLA did not have standing to challenge the state law. The state provision specifically requires that agricultural employers not interfere with a worker's access to service providers, including doctors and lawyers, when a worker is on break. CLA appealed the decision. On December 20, we filed an Answer brief on behalf of Intervenor Colorado Legal Services.

ROJAS V. FIRST PICK FARMS, LLC, NO. 1:23-00604 (W.D. MICH.)

Farmworker Justice, along with the Michigan Immigrant Rights Committee (MIRC) and Farmworker Legal Services of Michigan (FLS-MI) filed a case on June 9, 2023, alleging that farmworkers who were brought to North Carolina on H-2A visas, but were then later trafficked to Michigan to perform work outside of the permission of their job orders. While in North Carolina, the workers were awakened by their supervisor and were taken to Michigan to work on another farm. The farmworker-plaintiffs allege that they were subjected to horrific working and housing conditions while in Michigan, where they were forced to live in a two-bedroom house with no beds and a woefully insufficient number of toilets along with 30 other workers. Plaintiffs allege that Defendants required the Plaintiffs and their co-workers to work 12 hours a day with no breaks and work 7 days a week. The complaint asserts causes of action for violations of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and the Trafficking Victims Protection Reauthorization Act. Defendants have filed a Motion to Dismiss which remains pending.

AMICI ON INDEPENDENT CONTRACTOR RULE

Workers are often misclassified as independent contractors when they should be treated as employees, leading to the loss of minimum wage, overtime, and other workplace protections. On January 10, 2024, the U.S. Department of Labor finalized a rule on Employee vs. Independent Contractor Classification under the Fair Labor Standards Act, which was designed to reduce misclassification. Farmworker Justice had submitted comments during the proposed rulemaking for this standard, and the DOL Final Rule was favorable, such as by including language to protect seasonal workers. Since then, litigation has been filed against the DOL in multiple states challenging the rule. Democracy Forward Foundation and local counsel are representing Farmworker Justice in filing as amici in each of these lawsuits, and thus far in Georgia, Texas, Louisiana,New Mexico, and Louisiana.

Occupational Safety Standards

GARCIA ET AL V. PIONEER HI-BRED, INC., NO. 3.20-CV-03322 (C.D. ILL.)

In a pesticide exposure case, Farmworker Justice is serving as co-counsel in a federal lawsuit along with Legal Aid of Chicago, the Environmental Law & Policy Center and Texas Rio Grande Legal Aid where the organizations represent approximately 30 farmworkers including minors who allege that they suffered illnesses and injuries as a result of being sprayed with or having contact with pesticides administered via aerial application on two subsequent occasions (once by plane, the other by helicopter). The affected workers, who were recruited as migrant workers from Texas, were detasseling corn near Champaign, Illinois. The Complaint alleges that aerial applicators sprayed the Plaintiff workers with toxic pesticides as they worked on two separate occasions, even though the Workers were plainly visible. In their lawsuit, Plaintiffs have raised causes of action under tort law, the Fair Labor Standards Act (FLSA), the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and the Federal Insecticide Fungicide and Rodenticide Act (FIFRA).