FILE—H-2A workers hand plant Sunrise Magic apple trees in a field owned by Valicoff Fruit Company on Tuesday, April 28, 2020, in Zillah, Wash.

Ramon Torres Hernandez, a tree fruit worker who picked cherries, apples and pears in Washington this growing season, said he relies on hard work and high wages during peak harvest season to support himself and his family.

“It is hard work but if I work fast, I can fill five bins of cherries in about eight hours and make more than $30 per hour,” he said.

Hernandez and other farmworkers credit piece rates, where the amount earned is primarily based on how much one picks, for the ability to earn that much.

Torres Hernandez and his farmworker union Familias Unidas por la Justicia fear that the exclusion of piece rates in wage data to be released by the U.S. Department of Labor may lead to double-digit percentage declines in pay.

That prompted the union and Torres Hernandez to file a lawsuit against the federal agency in U.S. District Court last week.

“If I am paid minimum wage instead of a piece rate, I would lose over $3,400 each year,” Torres Hernandez added. That drop represents about 17% of Torres Hernandez’s annual income, according to a lawsuit that he and the union filed against the U.S. Department of Labor on Thursday.

Torres Hernandez is represented by attorneys with the law firms Columbia Legal Services and Barnard Iglitzin and Lavitt.

The lawsuit, filed in federal court for the Eastern District of Washington, alleges that the federal department’s shift away from higher piece-rate wages to “hourly wage guarantees,” which are generally at minimum wage, could result in an up to 30% decrease in wages for foreign workers hired on H-2A visas. Those lower wages could mean lower wages for local farmworkers, in violation of federal law that prohibits practices that adversely affect wages and working conditions, the attorneys noted.

Andrea Schmitt, staff attorney for Columbia Legal Services, said earning these piece rates during the cherry and apple harvest are crucial so farmworkers can make the money needed to survive the winter, when they are not employed.

“It’s not as though farmworkers make $20 to $30 an hour all the time,” she said. “The work fluctuates wildly and to survive as a farmworker you need to have these certain kind of jobs in peak harvest.”

A spokesman for the Department of Labor’s regional office in San Francisco said the agency generally does not comment on pending litigation. Questions were forwarded to the agency’s office in Washington, D.C., which did not respond.

A new way to pay

The H-2A program allows farms to bring in foreign nationals to fill temporary agricultural jobs if there aren’t enough U.S. workers to fill the need. The program has built-in safeguards to ensure local workers’ wages and working conditions don’t suffer because of the outside help.

The program has brought in more foreign workers in recent years. The U.S. Department of Labor certified 26,832 H-2A positions for Washington state alone in fiscal year 2020, making the state the third highest user of H-2A workers in the nation.

The agricultural industry has for decades established the piece-rate structure — in which workers are paid for their productivity — as the prevailing payment rate for the state’s cherry, pear and apple crop workers.

Skilled farmworkers who work quickly can earn hourly rates far above minimum wage — an estimated $250 to $300 daily — which helps them support themselves in their family when seasonal work drops off in the winter and early spring. That incentive also means employers have perishable crops harvested on time and can maximize their profits.

The “guaranteed hourly” concept resulted after the state Supreme Court ruled in fall 2015 that piece-rate workers were entitled to be paid for their breaks. The Washington Farm Labor Association, or WAFLA, encouraged growers to report they had paid minimum wage for harvesting, rather than the piece-rates actually paid, to stem a need to back-pay workers, the lawsuit contends.

Farmworkers didn’t initially see an impact. But last year’s prevailing wages survey ran with the idea of the “guaranteed hourly” wage and eliminated the predominant piece-rates, dropping most workers’ compensation down to an hourly rate of $12 an hour and creating concern among farmworkers nationwide, according to the lawsuit.

In an emailed response, Dan Fazio, executive director of WAFLA, said that that piece rate should not be used to establish wage rates for H-2A workers.

Fazio states that the Department of Labor’s approach seeks to “improve on the hodgepodge of piece rates and hourly rates.”

“Piece rates have always been the bonus for workers who work hard,” he wrote. “Having the government mandate a minimum bonus just doesn’t make sense. Or saying, ‘Oh the bonus in 2019 was X, so that is the minimum rate for 2020.’”

Andrea Schmitt, staff attorney for Columbia Legal Services, sees it differently: Using the guaranteed hourly rate rather than the piece rate for certain jobs, such as harvesting apples and cherries, does not reflect the reality of how those workers are paid.

“The prevailing wage is calculated in a way that is incorrect,” she said. “They have eliminated piece rate pay for a bunch of tasks that always paid on a piece rate basis.”

Schmitt said federal law already requires growers to pay the minimum wage, which makes the use of a “hourly wage guarantee” unnecessary.

“There’s nothing different about paying $6 a lug with a minimum wage guarantee and paying $6 a lug; it’s the same.”

Changes and challenges

The lawsuit reports that the U.S. Department of Labor has not published any prevailing wage rates since July 2019, when a rulemaking change proposed modernizing the methodology for establishing the rates.

The state Employment Security Department announced in December that it plans to include the “guaranteed hourly” wage concept in prevailing wage surveys for 2020 and that the process already is underway. The final rule, effective Dec. 21, sets a minimum hourly wage for H-2A jobs.

The attorneys called the developments “arbitrary” and “capricious” in the lawsuit.

“Protecting the local wages and working conditions (is) a basic tenant of that program,” Schmitt said. The U.S. Department of Labor is “failing to do so in this case.”

The lawsuit asks that the federal government remove the “guaranteed hourly” wage concept from the 2020 wage survey process and also stop approval of any H-2A job orders that don’t include a 5% increase for all piece-rate activities for the time being.

The case is set for a hearing at 9:30 a.m. Jan. 9 before Judge Salvador Mendoza Jr. in Yakima.

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