A federal U.S. district judge in the Middle District of Florida set July 1 as the date for oral arguments in the National Council of Agricultural Employers’ (NCAE) Motion for Summary Judgment challenging the legality of the Department of Labor’s (DOL) Adverse Effect Wage Rate (AEWR). Oral arguments on NCAE’s Motion for Summary Judgment on the AEWR rule will take place in the Federal District Court in Tampa.
Michael Marsh, president and CEO of NCAE, said the AEWR Final Rule has continued to cause growers extra hardship. This includes the disaggregation rule, which reclassified certain farm jobs into higher-paying categories. NCAE began its legal challenges against these rules in April 2023.
“Our challenge is unique from the other challenges that were brought against the Adverse Effect Wage Rate because we not only challenge the disaggregated wages for individual tasks on a farm, but we also challenge the USDA’s Agricultural (Farm) Labor Survey data,” he said.
Marsh said the data in the Farm Labor Survey sets inflationary wages across a farm, regardless of whether it’s a domestic worker or an H-2A worker, and that can be tough for a farm to handle.
“It inflates all the wages throughout agriculture and in the U.S., and unfortunately, it puts our food security more in peril in the United States, because it continues to push more and more of our food production to our foreign competition,” he said.
Marsh said when the original rules took effect in 2023, the Department of Labor said it would only cost an additional $375 million over 10 years. However, NCAE’s analysis showed that figure to be closer to $2 billion in 10 years.
The court in its decision noted that the Department of Justice’s third request for a 90-day stay, that the “latest motion fails to demonstrate that an additional stay is appropriate at this time, particularly in light of plaintiffs’ allegations of ongoing harm.”
Marsh is optimistic about the outcome of this hearing, noting a previous court denied the case due to the Chevron deference, which deferred to the agency’s interpretation of ambiguous statutes. However, since the U.S. Supreme Court struck down the Chevron deference, Marsh believes the case will come out in NCAE and its members’ favor.
“The premise of the determination for denial of preliminary injunction was just the fact that Chevron is overruled,” he said. “We should never have deferred to the agency’s expertise, and in this case, it’s particularly damaging because its billions of dollars have been transferred from farmers to employees. Workers deserve to be paid properly, but you can’t have a wage rate that’s disconnected from reality or disconnected from the marketplace for agricultural labor.”
