A federal judge has ordered the U.S. Department of Labor and the Washington Employment Security Department to redo a survey on farmworker pay, possibly leading to higher prevailing wages for the 2021 harvest.

Judge Salvador Mendoza Jr. in Richland, Wash., criticized the labor department for basing prevailing wages for 35 harvesting activities on an "unquestionably" unsound survey by the employment department.

"While no survey can be perfect, the present survey seems to entirely disregard accuracy," Mendoza wrote in a ruling issued Monday.

Familias Unidas por la Justicia, an independent farmworker union, brought the suit in the U.S. District Court for Eastern Washington. The suit alleged a faulty survey threatened to lower pay for picking and pruning apples, berries, cherries and pears.

The labor department accused the union, represented by Columbia Legal Services, of attacking the survey to get the court to award farmworkers more "equitable" pay. 

Mendoza referred several times to farmworkers living in poverty. He also said growers have an incentive to "lie" on wage surveys. "A lower prevailing wage is in their financial interests," he said.

Mendoza said he saw no evidence that growers manipulated the survey, but said it could be manipulated and that the labor department failed to verify with workers the wages growers reported.

The labor department referred questions to the Department of Justice, which did not immediately respond to a request to comment.

In court documents, the labor department said the cost of redoing the survey would be "enormous." The Employment Security Department did not respond to a request to comment.

To hire foreign workers on H-2A visas, growers must pay an hourly wage set by the labor department or the prevailing wage, whichever is higher. Prevailing wages can be an hourly wage or a piece rate. 

The union said workers fare far better under piece rates, but only 6 of the 34 prevailing wages were piece rate. The rest were hourly wages ranging from $12 to $15 an hour.

Familias Unidas' president, Ramon Torres, said in a court statement that under good conditions a worker can earn $200 to $250 in seven hours picking apples by piece rates, even more if conditions are ideal.

A skilled picker, under very good conditions, can earn $200 to $300 in eight hours picking blueberries under piece rates, Torres stated. By comparison, an hourly rate of $16 looks unattractive, he said.

The labor department argued that since the prevailing wages set the floor for foreign workers, they don't depress wages for U.S. farmworkers.

Familias Unidas argued that if wages on farms that use H-2A workers are depressed, U.S. farmworkers will seek work elsewhere, creating an artificial labor shortage and increasing demand for more foreign workers.

"We have to rely on prevailing wages being accurate," Columbia Legal Services attorney Andrea Schmitt said.

The Employment Security Department surveys workers about their wages "for research purposes," but doesn't report the results to the labor department.

The labor department said the worker surveys are unreliable, partly because the sample sizes are small and workers are surveyed by phone, mail and emails rather than field interviews concurrent with harvests.

The data show growers are predominantly paying hourly wages for harvesting and pruning, according to the labor department, citing reasons such as keeping fruit from bruising and Washington Supreme Court rulings that have complicated paying workers piece rates.

Wafla, an association that helps members obtain H-2A workers, submitted a brief asserting that the Employment Security Department has sowed confusion over how to report hourly wages, piece rates and season-ending bonuses.

Wafla executive director Dan Fazio said Thursday the argument now moves to how the department conducts a new survey. 

"We're going to have to be vigilant that they're following the correct procedure," Fazio said.

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