DOL must fix farm workers’ prevailing wage surveys

Familias Unidas por la Justicia and Columbia Legal Services win a court decision to force the Department of Labor to fix faulty formula that lowers H-2A wage rates.

PORTLAND, Ore. (June 3, 2024) — On May 24, the Ninth Circuit Court of Appeals ruled on behalf of the Washington farmworkers’ union Familias Unidas por la Justicia (FUJ) and its member Ramon Torres Hernandez that the Department of Labor (DOL) has a legal duty to protect domestic farmworkers’ wages in Washington state and require agricultural employers to offer the highest wage in contracts related to the H-2A program.

This federal program allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs. But H-2A workers are required to be paid a wage rate that is at least the highest applicable wage rate in effect at the time the work is performed.

The May 24 ruling overturns an order issued by federal district court judge Thomas O. Rice from Spokane and agrees with FUJ’s allegation that DOL has been rubber-stamping federal H-2A contracts with low hourly wages instead of requiring growers to offer higher prevailing wages, as outlined by federal statute.

“We are thrilled with the Ninth Circuit’s ruling because it recognizes that DOL has been failing to protect the interests of domestic farmworkers who are being pushed out of jobs by unlawful wages and working conditions in H-2A contracts,” said Andrea Schmitt, attorney from Columbia Legal Services who argued the appeal in early April. “We look forward to getting this order entered in the district court and working with DOL to protect the rights of domestic farm workers in the future.”

Here’s a video recording of that argument.

The faulty way DOL has determined and published wage data for the past 13 years has resulted in incorrect findings that have brought down wages for both H-2A and domestic farm workers. DOL admitted during the appeal that it had been following illegal policy since 2011 but had never publicly announced its policy until recently. With its ruling, the Ninth Circuit ordered Judge Rice to enter an injunction that excludes the unlawful lower wages from DOL’s annual wage survey that sets required wages for the H-2A program.

“It is shameful that DOL has been undercutting farmworker wages since 2011 and never had the courage to tell farmworker families,” said José Ramírez, the president of FUJ.

FUJ recently sued DOL a second time in federal court seeking to overturn new regulations issued by DOL in 2022 that also fail to protect farmworker wages. A preliminary injunction has been requested in that case, which was recently assigned to Judge John C. Chun in Seattle.

While the way DOL has handled wage-setting may be complicated, the impact on farmworkers is not. DOL is required by law to protect their wages. State legislation to improve parts of this system passed earlier this year, requiring future surveys to ask farmworkers directly (not just their employers) about their wages.

Washington is one of the last states in the nation that even attempts to protect local worker wages, thanks to decades of organizing. Local farmworkers in other states were long ago replaced with H-2A workers, making it easy for DOL to certify a shortage of local workers each year. This ruling is a step in the right direction toward a different future for Washington.

The farmworkers were represented in the appeal by Columbia Legal Services, Farmworker Justice, Barnard Iglitzin & Lavitt LLP, and Edward Tuddenham.