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A federal judge in Spokane brought down the gavel against a U.S. Department of Labor policy that would have resulted in Washington farm workers being paid less in the future.
The Department of Labor was going to use the results of a national survey of agricultural employers done on a state-by-state basis to set minimum wages for farm workers this year. In many cases, this would have changed how farm workers were going to be paid.
“Many of these wages changed from a piece rate to a minimum hourly rate at which the workers would earn a lot less money,” said Andrea Schmitt, an attorney with Columbia Legal Services, representing the plaintiffs.
As opposed to an hourly wage, a piece rate is paid out based on the amount of fruit or vegetables picked by the worker.
Schmitt explained that the Department of Labor’s decision was made because employers reported in the survey that they paid workers by the hour instead of the piece rate. However, “those employer responses were suspect in a bunch of ways,” Schmitt said.
For example, she said, employers dishonestly said they were paying hourly wages in “harvests that just aren’t paid by the hour in practice,” and “piece rates for blueberries that were lower than the required minimum piece rate.”
Workers were also surveyed — but their answers did not uphold their employers’ responses.
“The [Washington] worker survey came back showing that people overwhelmingly got paid by the piece in harvest, and [the Department of Labor] ignored that information,” Schmitt said. “In fact, the U.S. Department of Labor informed [the Washington State Employment Security Department] that it doesn’t use that information and put ‘used’ in quotes. … Farm workers’ voices were ignored when it was pretty obvious that there was a major problem in the survey results.”
Together, farm worker Ramon Torres Hernandez and agricultural workers union Familias Unidas por la Justicia brought the case against the Department of Labor in the Eastern District of Washington.
U.S. District Judge Salvador Mendoza’s decision on Monday tossed out the survey and required the government to use the wage rates from last year in Washington state. He also ordered the Department of Labor to issue a new survey “that is not arbitrary and capricious, in order to certify new — current — prevailing wage rates.”
Schmitt said the effective wage decrease would have been a poor way to thank the farm workers who have put their lives at risk over the past year in order to keep getting healthy food to Washingtonians and the rest of the country. With outbreaks occurring around the state at farms, orchards, and food processing plants, agricultural workers have suffered disproportionately higher rates of COVID-19.
“The results of the survey would have taken millions of dollars out of the pockets of farmworker families. In the context that we’re in, that’s just egregious,” Schmitt said. “These are the same families who are working and dying on the front lines of a pandemic so that our fruit and vegetables continue to be on the store shelves.”
Because temporary agricultural workers on H-2A visas come to the United States to work for one specific farm, Schmitt said they can end up victims of worker abuse. The threat of being fired — and thus deported — all too often stops workers from speaking up about unfair and dangerous work practices.
“H-2A workers are probably the most vulnerable farm workers in the country. One of the reasons for that is that they are tied to a single employer — they don’t have any choice about where to work once they get here — the labor market ceases to function completely,” she explained. “And they are beholden to that employer and that employer’s recruiter, and they are extraordinarily vulnerable to being put on do-not-hire lists if they complain about anything.”
Schmitt explained that these do-not-hire lists are often used by multiple farms, making it hard for a fired worker to find a new job at another American farm in future.
While this certainly does not apply to all agricultural employers, some have nevertheless gotten away with cramming workers into crowded housing, giving them tiny portions of food, and in some cases spoiled food, and depriving them of other basic necessities. As was seen during last summer’s agricultural outbreaks, these conditions can lead to the spread of COVID-19.
“Retaliation is an extraordinary concern for H-2A workers, so what that leads to is that workers really do not have the right to stand up for their rights to basic, humane working conditions,” Schmitt said.
KIRO Radio has reached out to the U.S. Department of Labor for comment.