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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