WASHINGTON, Nov. 23, 2016 - A
group representing about 600 agricultural employers in Washington state is
locked in a battle with the state’s attorney general, who is investigating
whether WAFLA and its members “engaged in price fixing and other violations” of
state and federal antitrust laws for ag labor.
WAFLA, formerly known as the
Washington Farm Labor Association, maintains it broke no laws when it provided
advice to growers on how to fill out a 2015 state wage survey, and that the
state subsequently took its advice and changed the survey to eliminate
confusion among growers.
But the office of Attorney General
Robert Ferguson has sent a second Civil Investigative Demand (CID) to WAFLA
seeking information on the group’s board members and on communications its CEO,
Dan Fazio, had with members about the wage survey.
WAFLA is fighting the CID,
claiming the AG’s office has no authority under either the state’s Consumer
Protection Act or the federal Sherman Anti-Trust Act to demand information. “Because
the CID cannot be relevant to any legitimate investigation, it is unreasonable
and violates the Fourth Amendment,” WAFLA said in a
petition filed in state court seeking to have that CID “set aside.”
The state has responded,
claiming that guidance issued recently by the Justice Department and Federal
Trade Commission “describe circumstances under which nonprofit organizations
and trade associations, working to keep costs down for their members, might
enter into agreements to decrease wages or cap wage increases for hired
employees.”
The controversy has been going on
for about a year, ever since Washington’s Employment Security Department said the
results of a survey sent to ag employers were significantly different from
previous year’s surveys and that guidance provided by WAFLA appeared to have an
impact on “prevailing wage rate estimates for Fuji, Golden Delicious and Granny
Smith apple varieties.”
In an interview, WAFLA’s Fazio
said the association advised growers filling out the survey to report the
guaranteed hourly rate and not the “piece rate,” the amount that workers get
for collecting a full bin of fruit. Skilled growers who are paid per bin can
make more per hour than they would if paid the state’s minimum wage of
$9.47/hour or the H-2A wage for Washington and Oregon of $12.69/hour.
Farmworker advocates called
for an investigation, claiming that the survey results could end up
depressing wages paid to workers under the federal H-2A program, which
allows employers to hire foreign national as temporary workers, so long as they
are provided housing, transportation and a specific wage. The survey results
are important, the advocates said, because they are used to set wages for farms
that take part in the H-2A program, which has grown in popularity in Washington
state.
But Fazio said the group did
nothing wrong. WAFLA objected to the 2015 survey because it did not allow
growers to report piece rates and hourly rates separately, which led WAFLA to
advise some growers to report only the hourly wages they paid. In addition, Fazio
said the association’s board never discussed advice given to growers. And, he
added, the state agreed in August to change the survey language so that growers
could report hourly wages and piece rates separately.
WAFLA will be filing its response
to the state on Nov. 28. A hearing in state court is scheduled for Dec. 1.
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