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Washington court ponders scope of piece-rate work

The Washington Supreme Court heard oral arguments in a case that may reshape how many farmworkers are paid.
Don Jenkins

Capital Press

Published on September 15, 2017 8:23AM

Last changed on September 15, 2017 8:34AM

Attorney Marc Cote, right, walks down the Temple of Justice steps Sept. 14 in Olympia with fellow attorney Toby Marshall after arguing in front of the state Supreme Court that piece-rate farmworkers should be paid separately for time spent on tasks such as safety training and traveling between fields.

Don Jenkins/Capital Press

Attorney Marc Cote, right, walks down the Temple of Justice steps Sept. 14 in Olympia with fellow attorney Toby Marshall after arguing in front of the state Supreme Court that piece-rate farmworkers should be paid separately for time spent on tasks such as safety training and traveling between fields.


OLYMPIA — Hearing a case that will decide whether Washington farmers can continue to pay straight piece-rate wages, state Supreme Court justices considered Thursday which tasks are necessary to pick fruit.

A lawyer for farmworkers suing the Dovex Fruit Co. of Wenatchee said piece-rate workers needn’t be compensated separately for climbing ladders and emptying bins, but they should be paid a flat wage for such tasks as traveling between fields and attending meetings.

Dovex’s attorney, Clay Gatens, said after the hearing that such a system could leave growers unclear about what qualifies as piece-rate work and how to pay workers.

“I don’t know that they would know,” he said. “From our perspective, it would be new law.”

The case, a follow-up to a 2015 ruling that mandated separate pay for rest breaks, could reshape production-based pay structures. The agriculture industry argues that piece-rate wages reward top performers, but farmworker advocates say they leave workers unpaid for some of their labor.

The Supreme Court ruled unanimously two years ago that rest breaks were important for worker health and that piece-rate pickers shouldn’t be penalized for taking them. Some justices, however, seemed reluctant to view that decision as a precedent to the Dovex case. Some suggested that the Dovex case presented a more complicated question and pressed Gatens and the farmworkers’ attorney, Marc Cote, to differentiate piece-rate work from “outside of piece-rate picking work.”

“What’s the work that’s included in picking?” Justice Mary Yu asked.

Gatens and Cote offered different definitions.

Gatens said piece-rate work included anything necessary to produce the “piece,” including mandatory safety training and traveling to fields.

Cote, who also argued the rest break case in front of the Supreme Court, said piece-rate work should be defined as tasks that reward efficient workers, such as moving ladders and the actual picking.

At other times, such as training and traveling, “they’re precluded from doing their piece work, so during this time, they’re not really piece-rate workers,” he said.

Justice Sheryl Gordon McCloud remarked that the difference between piece-rate work and non-piece-rate work seemed like “malleable concepts.”

Gatens said that’s why if justices rule in favor of separate pay for some tasks, they should leave the rules up to the Legislature. “I think what your struggling with is important and valid, but I think it speaks to the need for a legislative process, if there’s going to be a (another) category of compensable time.”

Cote said after the hearing that if the court rules in favor of separate pay for some tasks, he expects the justices to lay down principles for growers to follow.

“I anticipate they will provide reasoning that will be helpful to employers,” he said.

The question was referred to the state court by a federal judge presiding over a class-action lawsuit. The question about separate pay for rest breaks went to the court by the same legal process.



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