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Advocates say state failing to protect farmworkers under minimum wage law

Apr 15, 2016

Credit U.S. Department of Agriculture / Flickr - http://j.mp/1SPGCl0

In 1964, when legislators in Michigan created a state minimum wage, the idea was to create a system where no worker would be paid less than minimum wage.

But in a departure from previous practice, the state agency that enforces the law ruled in a pay dispute case that agricultural workers are not protected under the minimum wage law.

Tom Thornburg, a co-managing attorney with Farmworker Legal Services, says the change leaves some 50,000 farmworkers vulnerable to exploitation. Thornburg joined Stateside to shed some light on what happened to the state’s minimum wage law.

The family of six that approached Thornburg’s practice were harvesting asparagus for what they determined was less than $4 per hour. That's far below Michigan’s policy, established in 1997, which says workers must be paid a piece rate, where workers are paid per pound harvested -- or the minimum wage, whichever is higher.
 

It's very dangerous for agricultural employers to somehow rely on this arbitrary new stance of the Wage and Hour program and think that they do not need to pay harvesters an hourly minimum wage as a floor.

However, when they filed the complaint with Michigan’s Wage and Hour Division, they received a surprising response.

“We got a decision from Wage and Hour, saying that they had no jurisdiction to enforce the state minimum wage, with respect to this family of agricultural employees,” said Thornburg.   

Thornburg says his firm is considering its legal options, but wants the public to know that the change could be dangerous. He says when workers have to rely on piece rates, the only thing they can count on to boost their paychecks is to put "more produce in the box." And that he says, could encourage workers to bring their children into the field. 

“It’s very dangerous for agricultural employers to somehow rely on this arbitrary new stance of the Wage and Hour program, and think that they do not need to pay harvesters an hourly minimum wage as a floor,” said Thornburg.

“Because legally, we think that there’s a very strong case that they still need to do that, despite what the state of Michigan has determined. And that if they were to not pay a piece rate harvester at least the hourly minimum wage of $8.50, then they open themselves to potential liability.”

Why was the rule changed?

Jennifer Fields, the program manager from the Wage and Hour Division, says the change happened when the latest minimum wage law, Act 138, was passed in 2014.

The law set in motion a gradual increase of the state’s minimum wage. However, according to Fields, the rules that relate to piece rate work have yet to be updated.

“The new rules are not there for Act 138,” said Fields. “So the act itself, in section 10, does say that this act does not apply to [agricultural employers] ‘who traditionally contract for harvesting on a piecework basis, as to those employees used for harvesting, until the board has acquired sufficient data to determine an adequate basis to establish a scale of piecework and determines a scale equivalent to the prevailing minimum wage for that employment.’”

Two years after the law went into effect, the Department of Licensing and Regulatory Affairs still hasn't updated the rules for piece work, and Fields says she doesn't know when they'll be written.

That leaves Thornburg’s clients, and others like them, in limbo.

Listen to the full segment below to hear more from Tom Thornburg and Jennifer Fields' responses.