Farmworkers protected by numerous laws

For the Basin Business Journal | September 9, 2020 1:00 AM

There are roughly 160,000 farmworkers in the state of Washington.

More than half of those farmworkers are seasonal, and about 75 percent of all farmworkers in the state work in orchards picking and packing apples, cherries, pears and any other fruit that grows on trees and vines in the Evergreen State.

And according to Mike Gempler, executive director of the Washington Growers League, an industry group that represents growers in labor issues, all of those workers are covered by the same laws that cover every other worker in the state, save for state overtime laws — which do not apply to farmworkers — and union organizing laws, which are governed by the National Labor Relations Act.

“Washington does not have state laws for union organizing. But all other laws apply,” Gempler said. “All of the laws that apply to everyone else apply to agricultural workers — minimum wage, everything.”

That includes migrant farmworkers, both the 80 percent who are U.S. citizens who travel from state to state working harvests and those who come to the United States on H-2A temporary agricultural worker visas, Gempler said.

“Migrant or local, anybody who stays away from their permanent residence overnight to work is a migrant worker by law,” he explained.

The farm as a workplace, especially large farms like orchards and vineyards that employ large numbers of people to pick and pack, is governed by a thick skein of laws that regulate everything from the quality of farmworker housing to safety conditions and how much and for what people should get paid.

And in the era of the COVID-19 pandemic, even tougher health and safety regulations have been put in place to make sure farmworkers maintain distance between each other and that those who come down with the SARS-CoV-2 virus are properly cared for.

“The farm environment is one in which there is a lot of regulations regarding training and safety for the workforce,” Gempler said.

While big farms and orchards need workers from February through November, Gempler said most farm work — the picking and the packing — begins in the middle of May and tends to last through the first week of October. However, within those months, different crops are harvested at different times,

“That’s the flow of the farm labor system,” Gempler said.

While the law only requires that farm owners provide housing to foreign guest workers on H-2A visas, Gempler said some provide housing for all migrant laborers. A group of growers in Wenatchee provides housing to all migrants “in order to attract a workforce,” Gempler said, though housing for all migrants is “less common in other places like the Yakima Valley.”

“Workers with H-2A visas have to have housing free of charge,” Gempler said. “For domestic migrants, it can be pretty hit-or-miss. Some employers in remote areas of Central Washington provide housing to attract people.”

“That’s what we do,” he added.

All farmworker housing must meet both standard building codes as well as special state and federal standards for temporary worker housing, and for migrant workers with H-2A visas, Gempler said utilities must also be provided — paid for by the employer.

“It has to be fairly nice housing,” he said. “It has to meet temporary worker regulations. If it doesn’t, nobody can live in it.”

In addition, Gempler said the minimum wage for H-2A workers of $15.83 per hour is a “kind of de facto” minimum wage for most farm work. Gempler explained that growers have to keep track of all hours worked, must provide bathroom and rest breaks, and must pay farmworkers for any time “that is for the benefit of the employer.”

If they are out in the field, it starts raining, and they are asked to wait until the rain stops, then they have to be paid, Gempler said.

Hot days, like those in late July and early August, often mean that work starts as early as 5 a.m., according to Gempler, so that the work day can be done before noon.

“It can be brutal out in the sun,” he said. “So they start as early as possible.”

Minimum wage regulations also provide a floor for piecework, Gempler explained, meaning that workers can make more than the state or federal minimum wage if they work enough.

“But no one can make less than that. Period,” Gempler said.

The COVID-19 pandemic has meant that growers also have to take more precautions, including physical distancing, additional safety and protective equipment, hand washing six times a day and special care for migrant workers who report feeling sick or have tested positive for the SARS-CoV-2 virus, Gempler said.

“If we house them, we have to provide quarantine housing or send them to the county quarantine facility, but we still have to provide food and checkups,” Gempler said. “Health districts have rules for those recovering, and if it becomes more serious, they require medical monitoring.”

The toughest issue for growers right now, however, is transporting workers to and from the fields, Gempler said, because it’s hard to maintain a proper six-foot physical distance inside a vehicle.

“It limits the number of people you can have in a van,” Gempler said.

However, he added, the farm work itself adjusts easily to the demands of guidelines meant to combat COVID-19.

“Being out in the fields is naturally conducive to social distancing,” he said.

But Gempler added there is simply no COVID-19 line item in a typical grower’s budget, so no one really knows how much all of this is costing anyone.

According to Jon DeVaney, president of the Washington Tree Fruit Association, while growers are not directly involved in creating the COVID-19 safety rules for farmworkers, they do get a chance to give their input into the rules being crafted by the state.

“The agencies tell us what they are doing, we’d provide comment, and they take action,” DeVaney said. “It’s an ongoing process of evolving rules.”

That ongoing process means regulators and growers end up acting on what they know at the time, meaning the rules have changed frequently as knowledge about the virus — and about how best to protect people — has changed.

“There are frustrations on both the worker and the grower side,” DeVaney said.

For example, DeVaney said, guidance regarding the wearing of protective masks has changed significantly since the pandemic began. Early on, many growers donated PPE in inventory to hospitals and first responders, and so the growers had none on hand when state health officials began mandating the wearing of masks.

It doesn’t help that some growers having difficulties getting personal protective equipment did not communicate that situation very well to their workers, leaving some laborers with the perception that growers and farmers didn’t care about them.

“That became the perception,” DeVaney said. “It didn’t need to happen.”

A better way to handle the situation would have been for growers to have frankly and honestly admitted they were having difficulty getting protective gear and hadn’t been able to yet, DeVaney said.