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Federal judge’s ruling reinstates Washington’s minimum wage for H-2A workers

Federal judge’s ruling reinstates Washington’s minimum wage for H-2A workers

A federal judge has ordered Washington growers to pay their H-2A employees the prevailing local wage, pending litigation over the process for setting those wages.

On July 2, U.S. District Judge for the Western District of Washington John Chun issued a preliminary injunction requiring growers to pay their H-2A workers the prevailing local wage starting in 2022.

The rule takes effect immediately and applies to producers with existing and future H-2A contracts.

To view these wages, visit the U.S. Department of Labor’s Wage Library at dol.gov/agencies/eta/foreign-labor/wages/agriculture and select Washington. If growers have contracts for jobs listed in the prevailing wage library, they must pay at least the amount shown. For example, workers for the general apple harvest must be paid $28.26 per box, even though higher prevailing wages apply to picking Honeycrisp and Cripps Pink apples.

In 2020, the Familias Unidas por la Justicia union sued the Ministry of Labor over changes made in 2019 to the method for calculating piece-rate wages and other policies.

The department relies on state labor agencies to help determine prevailing wages by surveying employers. These employers must pay the highest rate: the prevailing wage, a regionally set minimum hourly wage (AEWR), a collectively negotiated rate, the state minimum wage, or the national minimum wage.

Washington is one of the few states that uses surveys conducted by the state’s Department of Employment Security.

The lawsuit brought by Familias Unidas por la Justicia questions how accurately these surveys reflect the market value of piecework wages at different levels.

The 2020 survey was certified by the Department of Labor in January 2022 and expired a year later.

The state has since conducted investigations but has not had them certified by the federal Labor Department, says Enrique Gastellum, CEO of Wafla, the nonprofit agency that issues most H-2A visas for the Northwest.

For the past two years, producers have paid piecework wages – which many workers preferred – but their minimum wage was in line with the AEWR. According to the judge’s ruling, the current wage will be considered the minimum wage.

Workers’ representatives are not the only ones dissatisfied with the process for setting minimum wages. The Washington State Tree Fruit Association, which represents employers in the agricultural sector, has sued the state’s Employment Security Department in Thurston County Superior Court over the transparency and fairness of the process. This case is also ongoing.

by Ross Courtney