FILE — Marcello Navarro picks Chelan cherries in an orchard owned by Dave Cowan on June 12, 2019, in Sunnyside.

A hearing for a lawsuit over farmworker wages has been delayed a month.

Ramon Torres Hernandez and his union, Familias Unidas por la Justica, filed an amended complaint on Jan. 4 to its lawsuit against the U.S. Department of Labor, noting additional issues with the agency’s wage data.

As a result, a hearing that was scheduled for Friday was pushed back to Feb. 18.

In the original complaint, filed last month with U.S. District Court, Torres Hernandez and FUJ took issue with the data from the Labor Department, which had not been published at the time. The concern was that farmworkers would experience drastic declines in farmworker pay as the data, which lag two years, included primarily hourly rates rather than the piece rates — either by the pound or bin — that farmworkers were more commonly paid.

While the data is mainly used for growers to set H-2A guest workers’ rates, FUJ contends it would impact farm wages overall. 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 amended complaint added that the U.S. Department of Labor’s exclusion of piece rates disregarded a worker survey conducted by the state Employment Security Department. The survey said that nearly 87% of workers participating were paid through a piece rate.

The lawsuit also took issue with the department’s strict adherence to sample sizes, which require 15% of workers in a crop activity to respond to a wage survey. That resulted in the agency excluding piece-rate wages for pears and apples in general and for several apple and pear varieties, including Fuji Honeycrisp, Red Delicious and Bartlett. The lawsuit contends that the sample sizes are a guideline, not a requirement. The state Employment Security Department recommended that the Department of Labor adopt survey results slightly below the sample size threshold.

Around the time FUJ and Torres Hernandez filed the amended complaint, the Department of Labor released the wage data, which primarily lists hourly rates.

A $12 hourly wage, reflecting the state's minimum wage at the time wage surveys were done, was listed for the harvest of most cherry varieties. There is one variety, Sweetheart, where the rates are set at 20 cents per pound piece rate with a $15.03-an-hour guarantee. Rates for apple harvest were similar, with most varieties set at $12 an hour and two varieties with a piece rate with an hourly guarantee.

The rates would allow growers to pay an hourly rate for workers, including those brought through the H-2A guest worker program, which would likely lead to a reduction in pay overall, said Lori Isley of Columbia Legal Services, which is co-representing FUJ and Torres Hernandez in the lawsuit.

In the lawsuit, attorneys contend that Torres Hernandez’s annual wages would drop by more than 17%, or $3,400, if paid minimum wage rather than piece rate.

“This officially reduces wages,” Isley said.

Labor previously said that the agency generally does not comment on pending litigation. In a previous story, Dan Fazio, of the Washington Farm Labor Association, an H-2A contractor, stated that the federal wage rates improve on the “hodgepodge” of piece rates and hourly rates. He argues that piece rates are meant to provide a bonus for productive workers and should not be used as a means to set minimum rates for future years.

Isley said a guaranteed hourly rate is not necessarily since employers are obliged to pay workers at least the minimum wage for domestic workers even if they’re paid via piece rate. Growers also still have to pay H-2A workers the Adverse Effect Wage Rate, or AEWR, which is higher than the 2021 minimum wage of $13.69 an hour.The lawsuit notes that the Department of Labor froze that rate at the 2020 level, or $15.83 an hour, for two years. The lawsuit references a different lawsuit filed by the United Farm Workers union to challenge the AEWR wage rate freeze.

Torres Hernandez and FUJ are asking the U.S. District Court to declare that the Department of Labor not use an {span}“guaranteed hourly wage”{/span} in its 2020 wage data and instruct Employment Security to exclude a question asking for such, require employers to include a 5% wage increase for all piece-rate activities in their H-2A job orders, and to maintain the status quo and allow for an increase of piece rates for all workers.

This story was edited to clarify that U.S. Department of Labor wage data lags two years. 2021 data, for example, is based on surveys of farm wages from 2019. 

Reach Mai Hoang at maihoang@yakimaherald.com or Twitter @maiphoang

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