Washington piece-rate pickers must be paid for ‘down time,’ high court rules

Workers harvest apples in Brewster, Wash. The Washington Supreme Court has ruled that piece-rate workers must be paid for “down time” such as meetings and travel between orchards.

A divided Washington Supreme Court ruled Thursday that piece-rate farmworkers must be paid separately for other job-related tasks, such as mandatory meetings and traveling between fields.

The majority said the decision applied to only farmworkers, but dissenting justices called the ruling an “ambitious re-imagining of Washington” law that will affect non-agricultural employees who aren’t paid a straight hourly wage.

“At the end of the day, the majority has simply rewritten the (Minimum Wage Act),” Justice Debra Stephens wrote in the dissent.

The ruling, which upsets traditional agricultural pay practices, stems from a class-action federal lawsuit against Dovex Fruit Co. and its parent company, Stemilt Growers of Wenatchee. U.S. District Court for Eastern Washington Judge Salvador Mendez Jr. referred the question on piece-rate pay to the Supreme Court.

The court heard oral arguments in the case, Carranza v. Dovex, in September. The decision Thursday was the latest of several Supreme Court rulings that have gone against farm operators.

The court’s majority opinion suggested that piece-rate workers must be paid separately for meetings, training, traveling between orchards and storing equipment. It also suggested that time spent climbing up and down ladders and emptying bins would not require separate pay.

The majority, however, said precisely setting the scope of so-called “piece-rate down time” will be left to further litigation.

“We’re in a bit of a pickle,” said Yakima labor attorney Sarah Wixson, whose clients include farmers. Although not directly involved in the case, Wixson co-wrote a brief submitted to the court by the Washington State Tree Fruit Association supporting Dovex.

Farmers should assume the ruling will apply to tasks that all workers spend the same amount of time on, she said. “The risk here is, What is going to bring a class-action lawsuit?”

Wixson said she doubts the ruling will end piece-rate pay. The system attracts the best workers, she said.

She also said that with farms competing for workers, she doesn’t foresee piece-rates declining to offset separate pay for downtime.

Efforts to reach Dovex or its attorney were unsuccessful.

In court, Dovex argued that piece-rates were set high enough to account for non-picking tasks. Dovex said it rounded up piece-rate pay at the end of each week to make sure every worker received at least minimum wage for all hours on the job.

Writing for the majority, Justice Mary Yu said that the practice conceals not paying employees for all hours worked and violates the state’s minimum wage law.

Yu said piece-rate workers must be paid at least the state’s minimum wage for down time. The decision did not address whether piece-rate workers could sue for back pay.

Justices Charles Wiggins, Barbara Madsen, Steven Gonzalez and Sheryl McCloud joined Yu in the majority.

Efforts to reach the attorney representing the farmworkers were unsuccessful.

Stephens, in the dissenting opinion, said the minimum wage law was not intended to prohibit other pay schemes.

“This (the majority’s) holding disregards the fact that piece-rate compensation is calibrated to account for the so-called ‘down time’ necessarily involved in piece work,” Stephens wrote.

“The consequences of today’s holding extends far beyond this case,” she wrote. “Do not believe the majority’s promise that today’s decision is a narrow holding.”

Washington Attorney General Bob Ferguson praised the ruling.

“Employers must fairly compensate farmworkers for all of their work. Period,” Ferguson said in a written statement. “I will continue to stand up for the legal rights of farmworkers.”

The high court in 2015 unanimously ruled that piece-rate farmworkers were entitled to separate pay for 10-minute rest breaks. Stephens said that rest-break ruling encouraged workers to take breaks and didn’t apply to the Dovex case.

Justices Charles Johnson and Susan Owens signed Stephens’ dissent. Chief Justice Mary Fairhurst wrote a separate dissent. She said she disagreed with the majority’s ruling, but said she would refrain from agreeing with Stephens that the ruling radically changes Washington law.

The rest-break ruling also stemmed from a federal class-action lawsuit in which a federal judge asked the Supreme Court to interpret state law. In another decision flowing from a federal suit, the Supreme Court unanimously ruled in 2016 that on-site farm managers must have labor contractor licenses, even if they don’t recruit workers. The decision upheld a $1 million judgment against three orchards.

Wixson said she took some solace in the court’s split decision in the Dovex case. “I shouldn’t be shocked, but it is disappointing,” she said.

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