( File photo )

U. S, District Court Judge Timothy Kelly has turned away a lawsuit brought by the National Council of Agricultural Employers (NCAE) against the U. S. Department of Labor.

The court ruled that NCAE’s action was not allowed under the statute of limitations because the regulation was issued in 2010.

NCAE and Peri & Sons Inc., a Nevada vegetable grower, brought the action following publication by the Department Labor’s 2019 Adverse Effect Wage Rate, according to a news release.

The Adverse Effect Wage Rate is the mandatory minimum wage that farm and ranch users of the H-2A temporary agricultural worker program must pay to all agricultural workers, according to the release.

NCAE sought a temporary restraining order asking that the wage increases mandated by DOL’s publication of the 2019 AEWR not be allowed. 2019 wage rate increases vary by state, with the 2019 rate for California at $13.92 per hour, up 5.6% from $13.18 per hour last year. For Washington state, the 2019 adverse effect wage rate is $15.03 per hour, up 6.4% from $14.12 per hour in 2018. The 2019 wage rage for Colorado was $13.13 per hour, up 22.8% from just $10.69 per hour in 2018.

The overall national average adverse effect wage rate for 2019 is $12.96 per hour, up 6.2% compared with $12.20 per hour a year ago. 

“We knew this case would be a challenge,” Michael Marsh, president and CEO of NCAE, said in the release. “Getting a court to enjoin the action of a government agency in its ministerial function is a difficult task. However, we clearly understand the devastating consequences to farm and ranch families of a mandatory wage rate unconstrained by market forces and we had to act.”

Marsh said in the release that NCAE is reviewing its legal options in the case.

“H-2A users have to have relief and it would have been best if the court had not allowed these ruinous wage rates to be forced upon them. This injustice has to be corrected.”

In its January lawsuit,  NCAE argued that the Department of Labor had failed to follow the law by not determining U. S. workers were adversely affected by employers’ use of these temporary foreign workers, and that this wage rate was necessary to protect them. 

NCAE also said that by failing to follow the statute, determination of the rate was “arbitrary and capricious” and the Department should be enjoined from implementing the unlawful wages. Further, NCAE argued that any such mandated wages be market-based.

The United Farm Workers and Farmworker Justice called the court’s decision a “victory for farmworkers” in a news release. The groups also said the NCAE claim that wages of farmworkers in the H-2A program are too high doesn’t have any legal standing.

“The law does not and should not guarantee agricultural employers access to unlimited numbers of vulnerable foreign workers at substandard wage rates,” Bruce Goldstein, president of Farmworker Justice and co-counsel for the United Farm Workers, said in the release. “We are pleased that the judge dismissed this lawsuit.”
 

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