Business

Washington State Battling To Regulate Brush Pickers

KPLU | Aug. 23, 2007 8:17 a.m. | Updated: July 17, 2012 1:19 a.m. | Shelton, WA

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By Austin Jenkins

When you buy a bouquet of flowers, do you ever wonder where the decorative greens come from? If it’s fern or salal, it likely came from the forests of the Pacific Northwest.
An army of workers — mostly immigrants — pick the greens. Local warehouses purchase them and ship the product across the country and even internationally.
It’s a largely unregulated industry. But the State of Washington is trying to change that and is now locked in a contentious legal battle. Olympia Correspondent Austin Jenkins reports.


 
In a warehouse near Shelton, Washington, workers bag and box bundles of salal. This popular floral green with leathery leaves grows in abundance on the wet side of the Cascade Mountains.
Tom Keeler: “This is one casing area where the product that we purchased, they bring in and put it in cases for shipment.”
 Brush Picker
Tom Keeler with The Hiawatha Corporation in Shelton, WA holds up a bunch of salal.
Tom Keeler is an executive with The Hiawatha Corporation, a giant in the Northwest floral greens business. He says during peak season his company ships more than five thousand boxes of salal a week — much of it to Europe.
 
Tom Keeler: “Well, the business has grown over the years. When I first came here you might have had 250 or 300 containers leave the Northwest every year. And now I’m sure it’s close to 800 to 900 containers a year that leave the Northwest.”
 
This explosion of the floral greens industry — and the extensive use of immigrant workers — has caught the attention of regulators in Washington State. You see, most brushpickers are treated as independent contractors. But Carl Hammersburg, with the Department of Labor and Industries, argues this is a misnomer. He says the way the industry is set up, the brushpickers should be considered employees of the companies that purchase the greens.
 
Carl Hammersburg: “They need greens picked. That’s how they make their money. And as with any other employer, if the point is, I need you to go do something for me so that I can keep my financial business operating. That begins to be the piece that we’re looking at to see where is that relationship, where is that control.”
 
The push to regulate the brushpicking industry began several years ago. That’s when forest products companies that pay into the workers compensation system complained that the floral greens industry wasn’t paying its fair share. The case for reform grew stronger when Labor and Industries paid out more than $2.5 million for two deadly van accidents involving brushpickers from Guatemala. The industry has battled back - filing and winning two lawsuits.

Tom Keeler, with Hiawatha, says the people who back their vans up to his warehouse each day to sell greens are not his responsibility.
 
Austin Jenkins: “Your point is these guys are not your employees, they are independent contractors?”
 
Tom Keeler: “We have no control over them, and so if we have no control over them, how can they be our employees?”
 
Keeler thinks the state can’t figure out how to regulate the people who pick brush for a living, so it wants the warehouses to do it. Back in his office, Keeler says Labor and Industries tactics have been heavy-handed. This includes roadblocks in the woods and unannounced visits to warehouses.
 
Tom Keeler: “I’d call it harassment, plain and simple. We’ve showed them twice through two different court cases that the avenue that they’re taking is not the right avenue.”
 
One of those cases is on appeal. Labor and Industries says its audits have shown that in many cases the warehouses — or sheds, as they’re often called — have an employer-employee relationship with the pickers. Typically — although not in the case of Hiawatha — the sheds are the ones that sell the permits to pick. Technically, the pickers don’t have to bring their day’s bounty back to the shed where they got their permit.

But Carl Hammersburg, with Labor and Industries, says that’s usually what happens.
 
Carl Hammersburg: “You know, part of this is looking at the money flow in terms of where are the permits issued and then where do the greens come back to. And while on the surface the statement is they can go anywhere, but that’s not what it looks like when we actually get in and look at the individual situations. We’re seeing that they’re flowing right back to the place that issued the permit.”
 
So what do the brushpickers have to say about this ongoing battle? Luis Garcia is from Mexico. He stands on a street in downtown Shelton and speaks through a translator. He says he doesn’t view himself as an employee of any one company.
 
Translator (on behalf of Luis Garcia): “He believes that all the brushpickers are independent workers because they go and get their permits, they pay for their permits, they pay for their own traveling over there.”
 
But Garcia also admits it’s risky not to sell your greens back to the shed that issued the permit.
 
Translator (on behalf of Luis Garcia): “Yeah, maybe next time they will not give you the permit.”
 
Patricia Vasquez is with the Portland-based Jefferson Center, an organization that advocates for rural immigrant workers. She says the situation is complicated because brushpickers are caught in a gray area – not quite independent contractors, but also not employees in the traditional sense. She’s tried to organize brushpickers to fight for reforms, but says most are reluctant to buck the system.
 
Patricia Vasquez: “And I think the main reason is fear. They’re just afraid that they’re going to lose their job. They’re afraid that things are going to get worse and their situation it’s already vulnerable enough in terms of how much money they make and when they make money and if they make money or not.”
 
This fall will likely bring the next round in the ongoing court battle between the sheds and the state. In the meantime, the Department of Labor and Industries continues to audit the industry. So far it’s fined floral green companies over a million dollars for back workers' comp dues.

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