Zirkle Fruit Co., one of Washington’s largest blueberry producers, is suing to stop the federal government from mandating a 50-percent boost in pay for contracted workers in the middle of the season.
Calling the increase “arbitrary, unsubstantiated, and ruinously high” in the lawsuit, the Selah company is continuing to pay workers at the originally contracted lower rate and holding the difference in escrow while it waits for its first hearing in the matter on Aug. 29, said one of its attorneys Wednesday.
The increase is so high that if Zirkle does not prevail, it may choose to simply not harvest the rest of its blueberry crop and switch to machines next year, the lawsuit says.
“Millions and millions of dollars of additional labor costs will be imposed nearly overnight, without any commensurate increases in crop prices or, in most cases, any ability to pass on these massive cost increases to customers,” Zirkle said in the lawsuit.
The company is represented by the Stokes Lawrence law firm in Yakima, Washington. Zirkle filed the lawsuit individually but expects other growers may join because the pay increases apply to everybody who hires H-2A workers.
Zirkle also grows apples, pears, cherries and wine grapes and was the Good Fruit Grower 2016 Grower of the Year. The company produces more than 10 percent of the blueberries in Washington, one of the largest blueberry producing states, but accounts for roughly one-third of the state’s hand-picked blueberries, the lawsuit said.
Unlike the majority of Washington blueberry producers, Zirkle picks 100 percent of its blueberries by hand, with more than 1,900 domestic and foreign guest workers on H-2A visas, the lawsuit said.
On July 24, the U.S. Department of Labor issued a notice of wage adjustment increasing the state’s 2019 prevailing wage for blueberry harvesting from 50 cents per pound to 75 cents, a 50-percent hike, for those H-2A workers.
Federal law requires companies using H-2A workers to pay them the highest of the state or federal minimum wage, the Adverse Effect Wage Rate, a union contracted wage or the regional prevailing wage for that crop, set by grower surveys. Companies also must pay their H-2A and domestic employees the same rate.
Increases to the prevailing wage are not unheard of, even during the middle of the season, Zirkle admitted in its lawsuit. However, the company takes issue with the combination of timing and the sheer size of the increase, said Sarah Wixson, an attorney with Stokes Lawrence.
For example, the prevailing wage for picking Bartlett pears and Skeena cherries increased by 13.6 percent and 17.6 percent respectively, in the same July notice. In contrast, the 50-percent hike for blueberries could make the crop unprofitable, Wixson said.
In an Aug. 7 complaint, Zirkle asked the U.S. District Court of Eastern Washington to invalidate that increase and stop the Department of Labor and the participating state agency, the Employment Security Department, from implementing and enforcing it. In the suit, the company challenges the federal government’s methodology for determining the new rate.
The suit was originally scheduled to have a hearing this week but the court rescheduled, Wixson said.
Zirkle had projected to harvest 14.6 million pounds of blueberries from 849 acres in 2019, the lawsuit said. The company began the harvest in June and, at the time of the notice, had harvested roughly 9.6 million pounds. If upheld, the prevailing wage increase would affect the remaining 5 million pounds.
—by Ross Courtney