Rules are meant to be followed. When rules are broken, we don’t throw out the rules because they are inherently flawed. We punish the people who break the rules. 

The attorney general’s lawsuit against a Sunnyside mushroom grower for alleged labor violations has been conflated into an indictment of the entire H-2A visa system.

The H-2A visa system allows Washington state agricultural employers to fill a void of an average of 30,000 employees annually, making our state among the top five employers of temporary foreign workers in the country.

The attorney general’s office alleges the Sunnyside grower falsely established a need for H-2A workers by systematically firing its pre-existing staff. According to the suit, the accused grower set about increasing hourly picking rates from 62.88 pounds to at last 68 pounds per hour, then ended the practice of publishing picking rates where employees could see them, followed by targeting female employees for punishment for not making their picking numbers. The suit alludes to this practice being done to favor male H-2A workers.

The costs and challenges associated with participating in the H-2A program bely this narrative from the attorney general’s office.

There are several hurdles to cross for employers interested in hiring employees through the H-2A program, the first, and most crucial, is showing the absence of a local workforce to fill the needs of their agricultural operation. In addition to proof of need requirements, agricultural employers who wish to participate in the H-2A program must provide housing and transportation for their employees while they are here on contract. Employers must also provide transportation from and to an employees’ home along with a per diem for the trip. All employment application fees are also absorbed by the employer.

The final expense incurred by an H-2A employer, and folded into the lawsuit’s allegations, is the Adverse Effect Wage Rate (AEWR). The AEWR is adjusted upward annually with the 2022 AEWR set at $17.41/hr.

There are several misconceptions about the H-2A program by people who are not overly familiar with it.

H-2A workers have fewer rights

The attorney general’s office, in its press release Wednesday, Aug. 17, indicated, “Foreign H-2A workers have fewer rights than U.S.-based workers.” That is inaccurate.

H-2A visa holders are extended similar rights and protections of U.S.-based workers. More specifically, it is incumbent upon their employers to ensure fair treatment of both H-2A and local employees to ensure their continued eligibility for program clearance.

H-2A workers are “trapped” by their employers

The press release from the AGO stated, “H-2A workers are brought in from other countries to work at a specific employer – meaning if they leave the employer, they must also leave the country.” There is more nuance to H-2A contracts.

H-2A contracts are “at will” contracts on both sides of the agreement. Employees can terminate their contracts at any time. If an employee voluntarily ends their contract, they are required to return home. Additionally, when an H-2A contract is nearing its end, visa holders may have the opportunity to transfer to other contracts. Employers are able to terminate contracts early for cause but are still required to pay three-fourths of the contracted income to their employees at their departure and cover their travel expenses home.

U.S.-based workers are paid less than H-2A workers

The minimum wage in Washington state for 2022 is $14.49/hr. The minimum wage, or AEWR, for H-2A visa holders in Washington state for 2022 is $17.41/hr. So, at first look, U.S.-based workers are paid less than H-2A workers. 

However, a deeper dive into H-2A rules tells a different story. When an employer chooses to hire H-2A workers, they are also choosing to pay all their employees doing the same job – U.S.-based and foreign – at the higher AEWR per federal requirements. An agricultural employer hiring a single H-2A worker is the equivalent of all farmworkers on that farm doing the same work receiving an instant $3/hr. pay raise.

The H-2A visa worker program is not perfect. But it is the working solution to a continual problem in our state: a perpetual lack of local farmworkers. 

Agricultural employers concede farm work is difficult. Employees are asked to work in the extreme weather of our state, tend to plants and animals, work long hours, and more but those challenges are offset by competitive wages that often exceed $22/hr. and flexible hours outside of peak times of year.

Every business group has unscrupulous employers. Agriculture is no different. Any employer violating the rules of employment should be punished to the fullest extent possible. However, undercutting an entire program because of a single bad actor is not good policy. 

Our state, our agricultural community, and, certainly, the people allegedly injured by the actions of their former employer are not going to be best served by putting the H-2A program on trial. They will, however, be served by bringing to justice the people who hurt them the most.