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CapitalPress.com 13 Friday, February 22, 2019 Pay: Small growers may be safer from class-action lawsuits Continued from Page 1 with no notice. It’s disrup- tive and creates uncertainty and additional stress,” said Jon DeVaney, president of the Washington State Tree Fruit Association. “I think it would be best for the industry and our employees to continue to be able to use piece rate because we get a high level of productivity and employ- ees are able to earn a higher wage,” said Sean Gil- bert, co-owner of Gilbert Orchards in Yakima. Last year, his pickers on piece-rate averaged the equivalent of $18 to $19 per hour, he said. That’s signifi- cantly more than the $11.50 per hour state minimum wage in effect then or the $14.12 per hour minimum wage that was required for foreign guestworkers. Court rulings In 2015, the state Supreme Court ruled that piece-rate farmworkers are entitled to separate pay for 10-minute rest breaks. In the subsequent Car- ranza v. Dovex ruling last May, the court said that piece-rate farmworkers must also be paid separately and at least at the state’s mini- mum wage for time on the job when they’re not pick- ing fruit because of weather delays, training, meetings and travel between orchards. It’s generally referred to as down time or non-produc- tive time. The 5-4 court majority ruled that not paying work- ers separately for down time conceals not paying them for all the hours they work and violates the state’s min- imum wage law. The court left open the question of whether down time such as climbing up and down lad- ders and emptying picking bags into bins was included. Justice Debra Stephens, one of the court’s four dis- senters, said the majority disregarded that piece-rate pay is calibrated to include down time. She argued the court was rewriting the min- imum wage law. Brendan Monahan, a Yakima attorney versed in tree fruit and labor litiga- tion, said the court made an “unforced error” by prohib- iting work-week averaging, the practice of adjusting a worker’s hourly and piece- rate wages in a week to ensure the worker receives at least the minimum wage. The court ruled piece- rate workers must receive at least the minimum wage for each hour worked and that averaging is no longer permissible. That, Monahan said, is at odds with indus- try practice, federal law and state Department of Labor & Industries guidance. “The uncertainty is that the court did not say what is down time. Is it five minutes or 10 minutes or 15 min- utes? And the court didn’t Dan Wheat/Capital Press Graciano Sanchez, Griggs Orchard foreman, Orondo, Wash., says piece rate pay can vary by crop load and maturity, tree size, weather and several other factors. Dan Wheat/Capital Press Roberto Castillo, right, and another worker use pole saws to prune the tops of cherry trees at Griggs Orchards, Orondo, Wash., on Dec. 31. They were being paid $14.12 per hour and like piece rate when picking fruit because it usually equates to more money per hour. say what all types of things are included. Therefore it’s too hard to calculate,” said Dan Fazio, executive direc- tor of the farm labor associa- tion WAFLA. Since the ruling, more than 50 companies have been sued in class action suits, most of them brought by a Tacoma attorney, India Lin Bodien, who has adver- tised for and solicited work- ers willing to sue, Fazio said. Lin Bodien did not respond to requests for com- ment, but her website states that “since starting her law firm in 2013, India has rep- resented over 35,000 work- ers in Washington state in class action wage and hour cases....” Monahan said he’s aware of more than 20 such law- suits but would not say how many he is helping growers defend against. “Every one of these are potential million-dollar-plus lawsuits. The defendant must pay all the legal bills for the plaintiff and that’s why they settle so quickly,” Fazio said. Most growers don’t have the depth of records to prove how much time piece-rate workers spent in non-picking tasks going back three years, so it’s “far more economical to negotiate the best settle- ment you can,” Fazio said. The settlements are costly. For example, Stemilt Ag Ser- vices, a subsidiary of Stemilt Growers LLC in Wenatchee, reached a $464,000 settle- ment in a class action suit a year ago over back pay for the rest breaks of piece-rate workers. Stemilt Growers also is the parent company of Dovex Fruit Co. Recommendations WAFLA facilitated the hiring of 13,848 H-2A-visa foreign guestworkers out of the 24,862 that worked in Washington last year. Like domestic workers, most H-2A workers are paid piece rate for picking, thinning and sometimes pruning and an hourly minimum for tree training and other chores. Since watching piece rate come under attack in Cal- ifornia in 2013, Fazio has been recommending grow- ers switch to the state or H-2A hourly minimum with bonuses for certain amounts of fruit picked. He also recommends growers require workers to sign arbitration agreements as a condition of employ- ment. The agreements allow individual arbitration but bar class-action lawsuits. Most employers are implementing arbitration agreements with new hires but it’s tricky to do it with current employees, Fazio said. The “vast majority” of growers continue to use piece rate because it costs them less for the volume of fruit picked than the hourly minimum wage, he said. Small growers with fewer than 40 employees are prob- ably safer from class-action lawsuits than larger employ- ers, Fazio said. One grower, Mona- han said, has switched to “super-premium” hourly rates of $18 to $20 with strict enforcement of mini- mum production levels. All of the various pay methods carry their own risks, he said. Not all settle Gilbert and many other growers were sued the day after the May 10 Carranza v. Dovex ruling, which he said seemed to be orchestrated. While many growers settled quickly, Gilbert has not. “Most of the things we were sued on did not per- tain to us. Meaning we were already doing the things they were alleging we weren’t doing,” Gilbert said. “Things like education and training we had already been paying Canola: Bill will ‘hopefully provide some leverage’ for and continue to do so. It’s an ongoing suit. We are leaning on our records and policies.” Gilbert Orchards has about 800 year-round employees, and the number peaks at 1,100 with seasonal workers added during Gala and Honeycrisp harvest, he said. “Our cost per unit, lug in cherries or bin in apples, is lower when we do piece rate. It increases the pro- ductivity per person,” Gil- bert said. “Most growers would like to continue using piece rate. All we need is clarity on what is meant by non-productive time.” The court ruling is vague enough that the legal basis for the lawsuits is not clear, DeVaney said. Because of that the burden is on the plaintiffs, and many settle- ments are being reached for smaller amounts than are being sought, he said. “If you have a clearly defined internal policy on how you compensate for non-production time, then your legal risk is signifi- cantly reduced even in the absence of a clearly defined definition by the court,” DeVaney said. The main options for growers, he said, are to con- tinue using piece rate with clear policy and documen- tation of pay for non-pro- duction or to switch to hourly pay or to hourly with a bonus. Most are trying to stay with piece rate, he said. In California, non-pro- ductive time was more clearly defined in law, DeV- aney said. Two years ago, he dis- cussed seeking legislative clarification of non-pro- ductive time but dropped it when farmworker advocates resisted. “I think there will be more discussion,” he said. “When we are in a strong labor mar- ket there is upward pressure on wages and benefits.” Piece rates, he noted, are not just set by labor supply but by orchard conditions such as weather and crop maturity. Monahan said he thinks the state Department of Labor & Industries and the Legislature should be “mov- ing at high speed” to craft legislation and regulations that address piece-rate pay in agriculture. Worker’s perspective Roberto Castillo, 45, has worked in orchards 27 years. He was in a crew of a dozen workers earning $14.12 an hour pruning cherry trees at Griggs Orchards, Orondo, Wash., on Dec. 31. “I’m a supervisor, bus driver and tractor driver now during harvest, so I get $15 an hour,” he said. “I used to pick apples and cherries and prefer piece rate because it’s more money.” Shifting everyone from piece rate to hourly would be OK, he said, if it paid a lit- tle more. His foreman, Graciano Sanchez, 52, said fast pickers can make $200 per day on piece rate in apples and $240 or more in cherries. Rate per bin or lug depends on sev- eral things, he said, including the height of trees, orchard slope, condition of fruit and weather. “Most guys are happy, happy because it’s good money. It’s more fast. Hourly is too slow, too costly for the grower,” San- chez said. “If rain is coming in cherries you have to get it done in a hurry.” Advocate’s opinion Farmworker advocates generally oppose piece rate as “inhumane because it pushes people too hard, employers push employ- ees,” Fazio said. That actually happens more as minimum wages increase, he said. As the gap between the hourly wage and what a worker can make on piece rate narrows, there’s less incentive for the employee to work fast, he said. Farmworker legal ser- vice lawyers have been “all over the map on the issue,” and some have lobbied the U.S. Department of Labor to require piece rate pay for H-2A guestworkers. DOL has rejected that, he said. Andrea Schmitt, a Tacoma staff attorney for Columbia Legal Services, a leading farmworker advo- cate, said she doesn’t see blanket opposition to piece rate among legal services and that CLS has not helped workers sue employers for piece rate down time. “There certainly are times when piece rates are set at unreasonable levels and manipulated, causing people to work too hard and be misled about what they will be earning,” Schmitt said. “But there are cir- cumstances where work- ers appreciate a good piece rate.” There are times when piece rate can be “unpre- dictable and detrimen- tal to workers even when employers are not trying to be,” she said. “For example, a worker can work hard in a field where the fruit is good and the next field is less plen- tiful and his earnings drop off. Workers haven’t had opportunity to gauge how much they should be moti- vated by piece rate,” she said. But, she said, there can also be good situations where workers are happy. DOL is supposed to publish a prevailing wage rate and a minimum wage (Adverse Effect Wage Rate, or AEWR, for H-2A guestworkers) for given areas each year but doesn’t always publish a prevailing wage, Schmitt said. When it doesn’t, the AEWR is the fallback. There have been times legal services and farm- worker advocates have felt the AEWR didn’t accu- rately reflect a higher pre- vailing wage, she said. That’s when groups have advocated piece rate as the accurate prevailing wage, she said. The piece rate is some- times several dollars higher per hour than the AEWR so it cuts wages if the AEWR is the only thing an employer has to pay, Schmitt said. “Farmworkers often have spotty and seasonal employ- ment in a short period of time,” she said, adding that what they make has to last them through the winter. Cows: 13 to 15 dairies near Sunnyside lost cows Continued from Page 1 Continued from Page 1 directing ODA to develop recommendations to protect “the unique attributes of the specialty seed industry in this state.” Rep. Brian Clem, D-Sa- lem, said the bill was intro- duced at the request of the Willamette Valley Specialty Seed Association, a group that’s concerned about adverse canola impacts, but that its introduction doesn’t imply the support of the committee or its members. While the Willamette Val- ley Specialty Seed Associ- ation is “not unhappy” with how the ODA’s rule-making process is going, it’s con- cerned about cross-pollina- tion risks since the agency isn’t seeking authority or funding for a public pin- ning map, said Greg Loberg, the group’s public relations chairman and manager of the West Coast Beet Seed Co. The bill will “hopefully provide some leverage” during the rulemaking pro- cess to reflect WVSSA’s Mateusz Perkowski/Capital Press File Canola seed is emptied from a harvester into a truck in Oregon’s Willamette Valley. A bill has been introduced that would extend a 500-acre limit on planting the controversial crop in Oregon’s Willamette Valley. concerns, he said. The organization has pro- posed 500 acres for annual canola planting because that amount is familiar to legisla- tors, but it sees that limit as negotiable, Loberg said. The group’s primary con- cern is regulating the num- ber of sites where canola is grown to ensure that isola- tion distances can maintain the genetic purity of spe- cialty seed crops, he said. The Willamette Valley Oilseed Producers Associ- ation, which supports more flexible canola rules, is concerned about the “rip- ple effects” the proposal could have for the entire agriculture industry, said Anna Scharf, the group’s president. Imposing such a regu- latory structure may cre- ate further problems for the farming industry, especially in light of brewing con- flicts over cross-pollina- tion between marijuana and hemp, she said. tallying lost milk production. He said it will be months before some of the dairies are able to afford replace- ment cows since all operate with loans and didn’t have this type of event budgeted. Some 13 to 15 dairies near Sunnyside lost cows, with the most at one dairy being about 600, he said. Seven of the dairies gave notice of loss to the USDA Farm Service Agency office in Yakima as of Feb. 15 and the rest are expected to soon, said Gerri Richter, FSA pro- gram specialist in Spokane. Producers must give such notice within 30 days of loss to prepare to apply for FSA Livestock Indem- nity Program (LIP) pay- ments at 75 percent of mar- ket value. There is no cap on the amount of money a sin- gle producer can receive, Richter said. The blizzard is a quali- fying event and the Yakima County FSA Committee is documenting it, she said. Five inches of snow were forecast, but the storm dumped 18 to 24 inches and brought day-long winds of 30 to 50 mph with gusts up to 80 mph. The dairies, most of which were on a ridge north of town, tried to pro- tect cows by stacking hay bales and moving cows into milking parlors. Cows became too cold and were overtaken by a herd instinct to huddle together. They huddled in corners of pens and most died from injuries from each other and some from cold exposure, said Gerald Baron, execu- tive director of Save Family Farming, a farm advocacy group. Cows could not be milked and at least one dairy dumped milk because roads could not be kept open for milk trucks. Most of the carcasses were composted at the dair- ies following protocols established by Washington State University that dair- ies regularly use for natural mortality, George said. Such composting with manure has to be used on the farm and has to be kept separate from compost leaving the farm, he said. A rendering company took some of the cows and less than one-third of them were hauled over Presi- dents’ Day weekend to a landfill in Oregon, he said. The cows average about 1,400 pounds each and their average time of milk pro- duction is about six years, he said. The Humane Farming Association issued a state- ment about its campaign to require producers to show they are trying to prevent weather-related losses in order to qualify for LIP pay- ments. Currently, producers get payments having paid no insurance premiums for the program and not having to show efforts to protect ani- mals, HFA says. Between 2013 and 2017, $199 million was issued to farmers and ranchers in LIP payments, primarily for weather losses, HFA said.
