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In a high-stakes battle for justice, Familias Unidas por la Justicia AFL-CIO, commonly known as Families United for Justice, and laborer Ramon Torres Hernandez, have laid down the gauntlet before the Ninth Circuit. Their fight centers on a baffling decision by a Washington federal court that allows the U.S. Department of Labor (DOL) to underpay foreign harvesters. They contend that this decision is not only illogical but also in violation of federal law.

A Nonsensical Decision Challenged

Families United for Justice and Hernandez are not holding back in their assertion that the district court's decision is absurd. The Code of Federal Regulations, they argue, unequivocally mandates that employers pay the highest available wage rate. The district court, however, took the astonishing position that the DOL was free to disregard this requirement because the regulation did not explicitly demand that the DOL determine which rate is higher.

Farmer's Wages 9th Circuit : The Battle's Genesis

This legal clash traces its roots back to the district court's perplexing judgment on August 31. In this decision, the DOL emerged victorious in a claim contesting that it and the Washington State Employment Security Department should compel employers to pay foreign workers under the H-2A visa program a wage exceeding the adverse effect wage rate (AEWR).

Families United and Hernandez had previously sought final judgment in August, following an interlocutory appeal that contested the denial of their preliminary injunction in 2022. Their pursuit of justice saw support from the DOL, which considered a final judgment appropriate but raised questions about the foundation of the union and worker's appeal.

The Ninth Circuit, however, left no stone unturned in its handling of the case, tossing the appeal on September 29 and casting a shadow over the underlying challenge.

A Wage Disparity Unveiled

Families United and Hernandez argue that the DOL calculates the AEWR on a state-wide basis, with no consideration for the nature of the work or the location of the job site. In stark contrast, prevailing wages mirror how most workers are remunerated, taking into account the most common units of payment, including piece rates and hourly wages for specific crop activities.

The duo contends that the H-2A application approved by the DOL for the 2023 harvest season only offered the lower AEWR wage rate, leading to a staggering wage loss, likely amounting to millions of dollars.

Farmer's Wages 9th Circuit : The Call for Justice

Citing the Administrative Procedure Act, Families United and Hernandez insist that the Ninth Circuit possesses the authority to overturn agency actions contrary to the law and to compel agencies to act when they've wrongfully abstained. With unyielding resolve, they implore the Ninth Circuit to overturn the district court's decision and render judgment in their favor.

The U.S. Department of Justice represents the DOL in this intricate legal battle, but as of now, they remain tight-lipped, choosing not to provide immediate comment. Representatives of Families United for Justice and Hernandez have also refrained from responding to inquiries at this time.

Families United for Justice and Hernandez are aptly represented by legal heavyweights including Andrea Schmitt, Joachim Morrison, Hannah Woerner, Blanca Rodriguez, Trent Taylor, Kathleen Phair Barnard, and Edward Tuddenham.

John Drake of the U.S. Department of Justice represents the DOL, while the Washington State Employment Security Department's interests are safeguarded by Marya E. Colignon and Jonathan Pitel of the state Attorney General's Office.

In a battle for justice and fair wages, the case of Torres Hernandez et al. v. Su et al. has found its place in the spotlight of the U.S. Court of Appeals for the Ninth Circuit.