A legal dispute between Yakima Valley orchard owners and state officials has been settled out of court, but both sides still disagree on whether a contract with H-2A workers was followed.
The Washington State Department of Labor & Industries (L&I) announced Wednesday that Rene and Carmen Garcia settled a years-long lawsuit by paying $500,000 in back wages and interest to more than 400 workers.
L&I's investigation alleges that H-2A workers at the Garcias' G&G Orchards Inc. and RC Orchards LLC weren't paid properly for the fruit they harvested between 2018-21.
The federal H-2A program allows growers to bring in temporary workers from other countries.
Under the employment contract, the farm owners owed workers the higher of either the piece rate for fruit harvested or an hourly minimum rate. Workers were also owed for time they spent on the job site waiting for machines to be repaired, L&I investigators said.
The Garcias, including their son, G&G manager Damen Garcia, dispute L&I findings. Speaking to the Yakima Herald-Republic on Thursday, they reaffirmed their argument from when the lawsuit was filed in August 2021: Workers at their orchards made more money being paid the hourly minimum rate than by piece rate.
"We didn't settle because we were wrong, we settled for monetary reasons," Damen Garcia said Thursday.." If we would have kept going, it could have cost us more than $500,000 to keep fighting it. And who knows how long it was going to drag out."
"They (H-2A workers) weren't going to make minimum wage if we paid them by piece rate," Carmen Garcia added. "We were right. We were never wrong."
Proving how much fruit was picked
In September 2021, Rene and Carmen Garcia shared the standard U.S. Department of Labor contract that their H-2A workers signed before coming to the United States to work for them.
The contract lists piece-rate wages for pear and apple varieties ranging between $20 and $27 per bin. It also states that "the employer may, in its sole discretion, raise or suspend the piece rate scheme in favor of hourly pay at the applicable H-2A hourly rate."
That rate, called the Adverse Effect Wage Rate, was $16.34 in Washington state in 2021, the final year covered in L&I's investigation and the state Attorney General's Office lawsuit.
Because H-2A workers were inexperienced as pickers compared to the domestic workers, they would have made less if paid by piece-rate. Instead, they were paid the AEWR hourly wage.
Damen Garcia said G&G records from 2018 recorded how many bins of apples were picked by domestic workers and how many bins were picked by H-2A workers. The latter group picked 0.5 bins per hour, a pace that would have paid them less than the minimum hourly wage.
L&I investigators believe the H-2A workers picked Honeycrisp, Gala and other varieties of apples at a pace of 0.85 bins per hour — a figure Damen Garcia says is impossible based on the number of bins they harvested.
"You only have so many bins harvested," Garcia said. "We tried to show L&I the records — we had a total of 17,000 bins (in 2018) and we paid out 7,000 bins (at piece rate) to domestic workers.
"The other bins were by the hour, and they didn't pick 0.85 bins per hour — we would have many more bins at that rate," he added. "That's a number L&I decided to magically come up with ... their explanation was because somebody had told them that's the (rate) they should pick.
"We have the proof to show that they were picking 0.5 bins an hour, not 0.85. But (L&I) disregarded it. Even in the years after, through 2021, we tracked all the bins like we're supposed to — there's proof that (H-2A workers) didn't make 0.85, they only made 0.5."
L&I Director Joel Sacks had a different opinion of the settlement, which was reached this spring after both parties entered mediation.
"It is important to hold employers accountable for paying workers what they are owed," Sacks stated in a news release. "Employers make a commitment to pay for a worker's time and labor, and this payment reflects a lot of hard work to make sure that promise was kept."
Terms of the agreement
The settlement includes funds covering the expenses of distributing pay to foreign workers, who can be difficult to locate.
Sacks reported that the Garcias provided known addresses and phone numbers for all employees from 2018-21. L&I will notify each worker under the settlement. Workers can also call 360-902-4920.
"We will make extensive efforts to contact the employees," Sacks said.
Under the settlement, the Garcias must inform their other employees about the payment, and must not intimidate or retaliate against any current or former employees.
L&I is also requiring them to provide a detailed payroll report from 2022, as well as time sheets for packing, harvesting, and bus driving workers.
The Garcias have already sent these to the agency, which is reviewing the records to determine whether those workers are owed any additional back wages, L&I reported in its news release.
Other terms of the settlement include self-audits, prepared by a third party, which the Garcias must conduct every six months through the end of 2024, and updated record-keeping practices so documents include all hours worked for all employees. This includes accurate pay statements to employees reflecting daily piece-rate earnings, and required meal and rest breaks.
Damen Garcia said his family has provided all the contact information for former workers requested by state officials, and he believes his family's orchards already were meeting the record keeping and other requirements stated in the settlement agreement.
"We're still tracking the bins like we're supposed to be doing. We started doing that in 2020. We're doing it how you're supposed to do it," he said.
"We've done right by our workers ... we didn't have anybody complain. Nobody complained. It was L&I that said you guys aren't paying them correctly, they should be paid more," Garcia added.
This is not the first time L&I and other groups representing workers have filed a lawsuit against the Garcia family.
In 2020, the Garcias reached a settlement in a separate lawsuit filed by the Seattle-based Northwest Justice Project. The group filed for back wages on behalf of seven H-2A workers who eventually received $240,000 in wages and damages.
Rene Garcia, speaking to the Herald-Republic in 2021, disagreed with that lawsuit and said he and his wife settled the case due to prohibitive legal costs.
