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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