200829-yh-news-agritourism-2.jpg

FILE — Thompson's Farm worker Rafael Garcia Flores picks peaches in an orchard at the farm on Thursday, Aug. 27, 2020, in Naches, Wash.

A federal judge said he will decide next week whether to grant a farmworkers’ union an injunction to maintain productivity-based wages.

U.S. District Judge Sal J. Mendoza heard arguments Thursday from lawyers representing Familias Unidas por la Justica and the U.S. Department of Labor.

“I want to take my time and make sure we are reviewing the information from all the people,” Mendoza said at the end of the 90-minute hearing. “I want to give everyone a fair shake here.”

Familias Unidas filed suit in federal court in December arguing that the excusing of piece-rate wages in wage data from the labor department would cause farm workers’ wages to be cut significantly. It sought an injunction to maintain the current wage structure with a 5% increase.

For decades the state’s farm and fruit industries have used piecework as the prevailing payment rate for workers who tend cherry, pear and apple crops. Under the system, workers are paid based on their productivity, such as how many pounds of fruit they can pick in a shift.

Skilled workers can earn as much as $300 a day under the system, which Familias Unidas’ attorneys say allows workers to support their families during the off seasons.

But a 2015 state Supreme Court decision that piece-rate workers were entitled to paid breaks resulted in the concept of a “guaranteed hourly” wage, with the Washington Farm Labor Association encouraging growers to report paying workers minimum wage for harvesting rather than the actual piece-rate to avoid a need to back-pay workers, according to the lawsuit.

A prevailing wage survey for 2019, the most current year data was collected, eliminated most of the piece-rate wages in favor of the guaranteed wage, which resulted in an hourly rate of $12 an hour, the suit alleges. While the data is primarily used to establish wages for H2A guest workers, Familias Unidas in its suit alleges it would hurt farmworkers’ wages across the board.

The H2A program allows farms to bring in foreign workers for temporary agricultural work if there are not enough U.S. workers to fill the positions.

At Thursday’s hearing, Lori Isley, an attorney with Columbia Legal Services representing Familias Unidas, said the labor survey was based on incorrect data, that some employers listed the state’s minimum wage as their guaranteed hourly wage, depressing the figures.

She said the most recent survey only had five piece-rate categories, compared to 51 in the previous year. And, she said, the government’s survey also did not jibe with the state Employment Security Department’s worker survey, which showed 86% of them were paid on a piece-rate basis.

“Washington is unique because, unlike many other places in the country where the H2A program has a strong hold, we have something worth protecting, something that exceeds the prevailing wage,” Isley said.

But Assistant U.S. Attorney John Drake said the labor department’s survey does not factor in minimum-wage or lower rates, instead classifying them as piece-rate and thus they do not affect the determination of the prevailing wage.

“Plaintiffs are looking at it from a wage-setting perspective, while the Department of Labor is looking at it from a wage-finding perspective,” Drake said. “(The department) gets data from the employers and does the math.”

He accused Familias Unidas of “comparing apples to oranges” by comparing piece-rate to hourly wages. While the piece-rate gives employees an opportunity to make more money, the prevailing wage is $16.34, not $12, Drake said.

Mendoza said the surveys appear to be “not worth the paper they’re printed on” because the information may be flawed.

“The information is not sufficient for people making decisions on what is the proper prevailing wage,” Mendoza said.

Reach Donald W. Meyers at dmeyers@yakimaherald.com or on Twitter: donaldwmeyers, or https://www.facebook.com/donaldwmeyersjournalist.