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.