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.
