Skagit County farmworker union Familias Unidas por la Justicia has asked a judge to secure wage protections as part of a lawsuit against the Department of Labor during a hearing last week.
As Washington’s fruit harvest season approaches, nearly 40,000 workers on H-2A temporary agriculture visas will travel to the state. The H-2A program is a federal initiative that allows employers to hire workers from different countries to fill seasonal roles. The use of this program has increased by 1,000% since 2008, as noted in a news release from Columbia Legal Services, a legal advocacy organization working on the union’s case. Local farmworkers have to compete with foreign workers who accept wages below the prevailing wage rates that many Washington workers depend on to make a living.
Columbia Legal Services attorney Andrea Schmitt said this problem originates from growers using the program to reduce worker pay and drive away local farmworkers, an issue that FUJ’s policy director Edgar Franks also pointed to.
“In reality, to simulate a worker shortage, employers can apply for the H-2A program to avoid large pay cuts that result from hiring local workers,” Franks explained, as local farmworkers are more likely to have connections within their community.
H-2A workers are paid on a prevailing wage system, which is the average pay that reflects the current market rate for similar work in the region. The Washington State Employment Security Department (ESD) issues out surveys to garner responses from statewide agricultural employers, and ESD uses this information to calculate prevailing wages each year.
In November 2022, regulations for these surveys were updated. This didn’t help, Schmitt said — the revision had an opposite effect on protecting farmworkers from wage stagnation.
“The results turned out to be that they hadn’t fixed anything at all, and there are actually fewer prevailing wage findings now than there were before,” Schmitt said, prompting Columbia Legal Services to look into the updated mandate.
Court documents state that despite these new regulations, DOL had stopped listing the prevailing wage rates from 2020 that were applicable to rates for May 2023.
“As a result, Washington State workers have been without prevailing wage protections for nearly a year and DOL has given no indication when, if ever, it will publish prevailing wage findings,” the documents read.
Schmitt argued to the court on Friday, June 21, that DOL should not be allowed to take down previous sets of wages and that the agency republish their most recent set. As a result of fewer wage findings, H-2A workers have received lower wages, she said.
FUJ is seeking a temporary injunction until a final decision is made in the case. In this instance, if the injunction is granted, it would require DOL to comply with prevailing wage laws and growers may have to offer newer rates.
Schmitt added that they are also requesting a pause on the certification of new H-2A applications.
U.S. District Court Judge John H. Chun told Schmitt that the court would try to send out an order within the next week. “We were pleased that the judge seemed to be very well prepared,” Schmitt said. “To a lawyer who is asking for some emergency relief, that’s all a positive thing.”
Olivia Capriotti is a Dow Jones summer news intern, specializing in data journalism. Reach her at oliviacapriotti@cascadiadaily.com.
