WASHINGTON, July 13, 2016 - Do farm operations that take
part in the federal H-2A program, allowing them to temporarily hire foreign
nationals, have to tell all potential employees – including local Americans –
of the existence of higher-paying jobs approved under that program?
That’s one of the crucial questions in a class-action
lawsuit argued in
the 9th Circuit Court of Appeals last week. And the court’s
decision could go a long way toward defining the obligations of employers
seeking temporary help from abroad.
Mercer Canyons,
a diversified 12,000-acre farm with vineyards and row crops, received Labor
Department approval in 2013 to hire 44 vineyard workers under the temporary
worker program – jobs for which Mercer would pay $12 an hour. It eventually
hired 19 people under the H-2A program. The sprawling operation on the Columbia
River in Washington’s Horse Heaven Hills was concerned it would not have enough
workers.
But when other local people came to inquire about jobs, they
were not told that the $12 positions existed, according to lawyers who brought
the lawsuit against Mercer in 2014. Most of the locals that were eventually
hired received lower wages, the lawyers said.
Mercer disputes the allegations and has appealed the class
certification granted by U.S. District Judge Stanley Bastian of the Eastern
District of Washington in April 2015. About 600 potential job-seekers could be
included in the class.
“This case is a good reminder that employers must take care
to comply with all applicable employment laws and regulations,” Bastian said in
his ruling of
April 8, 2015.
Responding
to the ruling, owner Rob Mercer said the farm “has a rich and long tradition in
that Yakima Valley of treating its workers well, and we take the allegations in
the lawsuit very seriously.”
But the company says it had no “affirmative obligation” to inform
potential workers, or former or current employees, of the H-2A jobs. It says
that the plaintiffs are trying to use the Agricultural Worker Protection Act to
create a legal duty that does not exist under the H-2A
program.
The AWPA says employers
cannot “provide false or
misleading information to any seasonal agricultural worker concerning the
terms, conditions, or existence of agricultural employment.”
To the
plaintiffs, represented by Columbia Legal Services in Washington state, that means
employers have to tell potential employees of the existence of all jobs,
including H-2A jobs if they are available.
Bastian said that at trial, the
plaintiffs could try to show that Mercer “had a policy to purposely
avoid” informing workers that better-paying jobs existed: “Plaintiffs may argue
to the jury that the blanket policy of withholding this information from those
who sought work was false or misleading at trial.”
Mercer attorney Eric Miller
argued to the three-judge 9th Circuit panel that the AWPA does not
require companies to tell any interested worker that higher-paying jobs are
available.
In passing AWPA, “The core concern Congress had in mind is
essentially a bait and switch,” he said, where “unscrupulous employers induce
workers to come out to their location … by promising a particular type of job
and then the conditions are worse.”
However, District Judge Leslie Kobayashi, who was part of
the panel, wondered whether Miller’s reading of the law might be “a little too
strict,” that not providing information is not that different from providing
false and misleading information.
And Circuit Judge Milan Smith said, “If you had falsely
advertised that these jobs paid $2 an hour, that would of course dissuade
(potential workers) from appearing… On the other hand, a failure to tell them
you’re paying $12 an hour might have a similar effect.”
Lori Isley of Columbia Legal Services told the circuit court
that the AWPA “requires growers to provide truthful information about the
existence of employment – and that’s exactly what did not happen here.” She
cited examples of workers who traveled long distances to the farm, sometimes
more than once, but were not told about the $12-an-hour jobs.
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