The recent publication of new prevailing wages — based on state surveys subject to ongoing litigation — raises piece rates for some cherry harvest activities but eliminates those for apple harvest.
Piece rates for some cherry harvest activities went up as much as 28 percent.
The U.S. Department of Labor provided informal guidance that said the rates it published on June 19 don’t take effect for H-2A employers with existing contracts until they receive a Wage Adjustment Letter from the agency, said Kate Tynan with the Northwest Horticultural Council, which is tracking this issue.
As of July 3, some growers were reportedly receiving notification letters.
“The NHC recommends that H-2A employers contact their attorney or agent for specific application of these requirements to job orders or existing contracts,” Tynan said.
H-2A employers are required to list any prevailing piece-rate wages on their job orders and pay the highest of the listed prevailing wages or the Adverse Effect Wage Rate. In Washington, prevailing wages are based on surveys that are conducted by the Washington State Employment Security Department and then certified and published by the USDOL.
If new prevailing wages go up, growers are required to pay the higher wages on existing job orders when the wages take effect. If prevailing wages go down, or the survey returns no finding because it had insufficient data for a given category, that only affects future job orders, not existing ones.
That’s one of many frustrations growers have with the prevailing wage process, said Jon DeVaney, president of the Washington State Tree Fruit Association.
Usually, the notification letter advising that new prevailing wages are in effect coincides closely with the publication of the wage rates, but this year it did not, DeVaney said, adding to employer confusion.
Further confusion stems from the category “Dark Red” cherries, for which the newly published prevailing rate is 27 cents per pound, plus a $15.39 per hour guarantee. That’s higher than the 20- and 21-cent wages for cherry harvest published in 2022 (the most recent certified prevailing wage finding) and higher than the 24 cents per pound published for Bing harvest, and it also raises the question as to what exactly counts as a Dark Red cherry. Most other cherry varieties show “no finding” in the new publication, including the more common “Dark Sweet” category.
DeVaney said he thinks the ESD is misinterpreting some survey data, because there is no harvest cost difference for cherries related to their depth of red color — unlike, say, harvesting a more bruise-sensitive yellow cherry. The term “Dark Red,” while uncommon, seems to be used for stemless cherries, he said, which are harvested differently and may have a different associated wage.
However, the state ESD said it will classify “Attika, Bing, Chelan, Cowiche, Kiona, Lapins, Regina, Santina, Selah, Tieton, Black Pearl, Pie, Black Republican, Glory and Sonata” as “Dark Red” varieties, according to documents DeVaney shared with Good Fruit Grower. For this classification, ESD cites a now-retracted fact sheet on cherry color ranges from the Washington State University breeding program, DeVaney said.
(Editor’s note: In 2024, a judge ruled in a long-running intellectual property dispute that the cherry marketed in Washington as Glory is actually Staccato, bred by Agriculture and Agri-Food Canada. But ESD has Staccato classified as a “Red” cherry on the recent list provided to WSTFA.)
Meanwhile, the current prevailing wages are subject to ongoing legal challenges by farmworker advocacy groups. The labor union Familias Unidas por la Justicia sued the Labor Department in 2020 over the methodology used to calculate the piece-rate wages.
In the latest twist, the plaintiffs have filed a temporary restraining order seeking to prevent the newly published survey findings from taking effect in categories in which there are “no findings.” This includes all apple harvest activities. The USDOL is contesting this, Tynan said.
Overall, she called the newly published rates “a mixed bag” for growers. If or when the rates take effect, there would be no required minimum piece rates for apple harvest, but that would only apply to future job orders, not the ones that growers have already filed.
Tynan and others have been sharing Washington’s prevailing wage situation with H-2A policymakers in Washington, D.C., as part of their advocacy to see the prevailing wage rate eliminated from the H-2A program.
“This is a perfect example of the flawed process and why it is impossible to establish accurate prevailing wages with any level of confidence,” she said. •
