Farm labor

Washington state Sen. John McCoy, D-Tulalip, proposes to broaden the rights of farmworkers by taking away the rights of their employers.

OLYMPIA — Farmers and labor contractors would be presumed guilty of illegal retaliation if they disciplined workers who complained about working conditions or took part in union activities, under a bill introduced Jan. 14 by four Senate Democrats.

Farms could avoid fines by proving their innocence with “clear and convincing evidence,” according to Senate Bill 6261. Sen. John McCoy, the bill’s prime sponsor, said he was particularly concerned about the treatment of foreign workers on H-2A visas.

“There’s a tight grip held on those workers,” said McCoy, a Snohomish County legislator.

The law already forbids farms from firing employees who file claims for pay or ask about their rights. SB 6261 would expand protected activities to include organizing co-workers to improve conditions and refusing to do work thought to violate health and safety laws.

If an employee were fired, demoted or denied a promotion within 90 days, the farm would be presumed guilty. The presumption of guilt also would apply if the farmer declined to rehire a seasonal worker. The protection for workers would be triggered by a complaint by an employee or ex-employee and would not have to be in writing.

Washington Growers League Executive Director Mike Gempler said the bill “seems overly broad.”

“It would seem to prevent an employer from taking reasonable action against an employee for just cause,” he said. “It would have an impact on being able to adequately manage your farm if you can’t discipline an employee for doing legitimately destructive things.”

Columbia Legal Services policy director Antonio Ginatta said broader protections are needed because Washington agriculture increasingly relies on foreign workers. Adding more details to the anti-retaliation measure would help workers from being blackballed for asserting their rights, he said.

“We want to reduce the vulnerability of being an H-2A worker,” Ginatta said.

Growers say they’re unable to find enough U.S. workers, so they turn to foreign workers, who are attracted by relatively high wages.

Dan Fazio, executive director of WAFLA, a nonprofit association that helps supply its members with foreign workers, said the legislation was “a bill in search of a problem.”

“I think the biggest thing is it makes it easier to file a lawsuit, and lawsuits are expensive,” Fazio said.

Said Ginatta: “Does it give workers the ability to raise and protect their rights from retaliation? Sure it does that.”

Under the bill, farmers also could be presumed guilty if accused of intimidating, threatening, coercing, blacklisting or penalizing employees or changing their pay, work hours or responsibilities.

Washington State Dairy Federation policy analyst Scott Dilley said the bill was “colossally unfair” for presuming guilt.

“It completely upends the American system of justice,” Dilley said.

The bill also would require WAFLA to have a farm labor contractor license. Nonprofit associations are currently exempt from licensing requirements. McCoy said he wanted to ensure WAFLA was following all requirements for bringing in foreign workers.

Fazio said it would be “no skin off my nose.” It wouldn’t change what WAFLA does now, he said.

“It would just be a paperwork drill,” he said. “There would be no benefit to workers whatsoever.”

Sens. Rebecca Saldana of Seattle, Steve Conway of Tacoma and Patty Kuderer of Bellevue signed on as co-sponsors.

McCoy sponsored a bill last year to tax farmers who hired foreign workers. The bill spawned into a work group, which is meeting. McCoy said he won’t re-introduce the tax this year, but said he’s still committed to beefing-up state oversight of H-2A workers.

“We’re eventually going to get around to some sort of fee structure,” he said.

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