Wage Calculation of H-2A Visa Workers in Washington

The United States H-2A visa program allows employers to bring foreign nationals into the country to fill temporary agricultural positions. Due to labor shortages, it has become common for employers in Washington to hire temporary agricultural workers through the H-2A visa program. Wage calculation in workers compensation cases involving H-2A workers has become a frequent issue.

The rate of time loss benefits a worker is due depends in large part on their gross monthly wages at the time of injury (or manifestation of occupational diseases. RCW 51.08.178 dictates how wages are calculated based on the workers employment pattern. Workers with a regular and continuous employment pattern fall under RCW 51.08.178(1) (“Subsection 1”). Under Subsection 1, wage calculations generally involve averaging earnings over a representative period, the default being three months prior to the date of injury. Workers whose employment pattern is found to be exclusively seasonal, part time, or intermittent fall under RCW 51.08.178(2) (“Subsection 2”). Wage calculation under Subsection 2 involves dividing by twelve the total wages earned from all employment in any twelve successive calendar months preceding the injury.

The Washington Supreme Court has defined exclusively seasonal as: “entirely dependent on the period of the year that is characterized by a particular activity.” Double D Hop Ranch v. Sanchez, 133 Wn.2d 793, 799 (Wash. 1997). Consistent with that definition, H-2A workers are hired to perform agricultural labor for a set time period, which generally involves crops that are dependent on a certain season.

Nonetheless, the Department of Labor & Industries (“Department”) frequently considers H-2A workers to be regular and continuous under Subsection 1 rather than exclusively seasonal under Subsection 2 when issuing wage orders. The practical impact of the Department’s actions is that only the workers’ wages over the last 3 months is considered instead of 12 months of wages, which would include the lower wages earned while the worker is not in the United States. We have seen worker’s monthly wage rates more than triple when the Department uses Subsection 1 instead of Subsection 2.

SBH attorneys are currently in litigation at the Board of Industrial Insurance Appeals and hope for a ruling concluding H-2A workers are exclusively seasonal for purposes of wage calculation. Do not hesitate to call me at 503-595-6114 or email me at eaaberg@sbhlegal.com with any general questions or if you want to discuss the Department actions on a particular claim.