Now that harvest is over, a group of Washington apple producers have dropped their lawsuit against the federal government over prevailing wage increases.
The legal challenge was “moot” once the apple harvest ended in early November, the growers’ attorney said.
The mandated higher wages have all been paid now, said Peter Spadoni of Jeffers, Danielson, Sonn and Aylward in Wenatchee. “There’s no way to get them back.”
The growers, with the help of industry groups, have turned their attention on getting more involved with state wage surveys that the U.S. Department of Labor uses to set prevailing wages.
In July this year, the Department of Labor announced prevailing wage rates of $16 per hour for workers harvesting all high-density apples. That’s nearly a dollar higher than the 2019 $15.03 Adverse Effect Wage Rate, or AEWR, required for all growers using contracted H-2A workers. Growers must pay the higher of the two.
The producers — Evans Fruit Co., WGE Holdings LLC, McDougall Family Farming Inc., McDougall & Sons Inc., Double S Orchards LLC, Columbia Fruit Packers Inc., Columbia Orchard Management Inc. and Wade & Wade LLC — filed suit in October in U.S. District Court, Eastern Washington District, arguing the federal government used an incomplete and faulty wage survey from the Washington State Employment Security Department to set the prevailing wage mandate.
They asked Judge Salvador Mendoza to issue a preliminary injunction preventing the Department of Labor from enforcing the wage increase. He denied that in October, so the growers and their attorney voluntarily dismissed their case in early November.
Meanwhile, similar but unconnected legal challenges to prevailing wage increases — also in front of Judge Mendoza — continue.
Zirkle Fruit of Yakima also legally challenged the apple wage increase but did not seek a preliminary injunction like the rest of the growers. Zirkle has paid the wages and seeks damages in the ongoing lawsuit, said Brendan Monahan, an attorney at Stokes Lawrence in Yakima.
Also, Zirkle Fruit filed suit challenging the Department of Labor’s 50-percent increase to prevailing wage for blueberry pickers in Washington. In that case, the company did seek a preliminary injunction and Mendoza granted it, temporarily preventing enforcement of the higher wage while the case proceeds. In his order, Mendoza reasoned the blueberry increase was greater and came during the middle of harvest. Blueberry harvest begins in June, while apples don’t start harvest until August.
In late October, Mendoza clarified that order, limiting the injunction only to Zirkle Fruit, not other blueberry growers, even though the prevailing wage hike affected them, too.
Editor’s note: Story has been updated to include Zirkle Fruit’s apple wage challenge.