The U.S. Department of Labor’s methods for setting prevailing wages for farmworkers face challenges from employers and workers in separate court cases that could affect pay scales for domestic and guest farmworkers.

The Washington farmworker union Familias Unidas por la Justicia contends the methods will depress wages, while the National Council of Agricultural Employers argues they will inflate wages.

“Our views are a little different,” the council’s president and CEO, Michael Marsh, said June 12.

At issue is the way the Labor Department surveys prevailing wages for such tasks as picking a bin of apples. Farmers in the H-2A program must pay prevailing wages or the H-2A hourly wage, whichever is higher.

The Labor Department depends on states to survey wages and follow federal rules. If surveys are invalid, the wage defaults to the H-2A hourly wage, which this year in Washington is $19.25.

The lawsuit Familias filed in May in the U.S. District Court for Western Washington alleges the methods the department adopted in 2022 are producing too few prevailing piece rates.

The lawsuit challenges the methods as overly complicated and too restrictive. Also, the union complains that prevailing wages expire after one year, even if new piece rates have not been determined.

Without piece rates, according to the union, more farmworkers will be paid by the hour. The union has submitted declarations from farmworkers stating they make far more with piece rates.

The Labor Department’s “number-one job in this system is to protect local workers’ wages, and it is failing spectacularly,” the union’s attorney, Andrea Schmitt of Columbia Legal Services, said in a statement.

Agricultural employers complain the rules reduced sample sizes. As few as 30 workers and five employers can be surveyed to calculate prevailing wages for a particular task, according to the suit.

With such a small sample size, the surveys will be less accurate, according to consulting economist Steve Bonars, who filed a court declaration on behalf of the employers.

Surveys could overestimate or underestimate prevailing wages, but the surveys that lowball piece rates are less influential because workers must be paid at least the hourly minimum wage, according to Bonars.

The council’s suit was dismissed by the U.S. District Court in Washington, D.C. The council has appealed to the U.S. Court of Appeals for the District of Columbia.

In court records and other documents, the Labor Department argues the old rules, in place since 1981, needed to be updated to protect the wages of domestic workers, but that it’s not required to find prevailing rates for all agricultural tasks.

Setting the H-2A hourly wage and giving U.S. residents first crack at farm jobs are more important for protecting domestic farmworkers than determining piece rates, according to the department.

The department says it is reviewing pay surveys conducted by the Washington Employment Security Department during the 2023 harvest and will post new prevailing wages if the surveys are valid.

In the meantime, Familias has asked U.S. District Judge John Chun in Seattle to issue a preliminary injunction barring H-2A workers from entering Washington.

The Labor Department says an injunction would not be in the interest of growers, the foreign farmworkers or the public. Chun has yet to rule on the motion.