Nov 19, 2024

Tree fruit worker decision sparks reaction from Washington growers

By clouding farmworker pay systems, a court ruling on Washington state H-2A rules could make tree fruit harvesting more costly nationally.

In July, U.S. District Judge John Chun ruled in favor of Familias Unidas por la Justicia AFL-CIO, a farmworker union, which challenged the rules governing how farmworkers are paid. The decision, tinyurl.com/y22kh4b5, directs enforcement in the state of the U.S. Department of Labor’s (DOL) policy that requires prevailing wage rates to expire after one calendar year and that the 2022 prevailing wage rates be reinstated.

In the preliminary injunction, the court did not consider all the facts regarding how the agricultural industry works, said Scott Dilley, public affairs director of the Lacey, Washington-based Worker and Farmer Labor Association (WAFLA). The type of pay systems, including hourly vs. traditional piece rate vs. hourly plus bonus, in Washington’s labor-intensive agriculture have changed substantially in recent years, he said. Examples include different marketplace conditions, labor availability, hourly overtime rates of pay, different cropping activities, inflation, increasing Adverse Effect Wage Rate (AEWR) rates and trade issues, he said.

Three-year-old data is stale and isn’t representative of current labor and market conditions, which is why DOL’s H-2A rules limit applicability of survey data to only one year, Dilley said.

“Growers in Washington need to pay close attention to their harvest activities this year,” Dilley said. “If they offer piece-rate pay, they need to make sure that they are paying at least the rates from the 2022 survey results, which the judge reinstated. This case could have national implications.”

Because some workers may have earned more on piece rate several years ago doesn’t mean that all workers can necessarily earn more on piece rate today, he said. AEWR rates have increased over the past few years, while commodity prices have not kept pace with those costs, Dilley said.

“A viable economic agricultural model from a few years ago is increasingly not viable or sustainable now,” Dilley said. “Plaintiffs seem to be living in the past, while farmers and current workers seem to better understand the current ag economic conditions on the ground.”

Dilley said it’s difficult to determine how the ruling could affect grower costs nationally, which depends on the worker productivity, fruit variety harvested and harvest market conditions.

“It is not even the direct cost. It’s the administration of the ruling,” he said. “Harvesting practices have changed over the past few years, resulting in a different type of pay to workers (hourly versus piece rate). Many growers have already transitioned to hourly pay over the past few years, but are now forced to pay piece rates under an antiquated system that is divorced from current market realities. So the largest impact is the court dictating to employers the type of pay they must provide, not what they choose or what the market can bear.”