Farmworker groups file lawsuit over H-2A wages

(File photo)

The fight continues over wage rates in the Department of Labor’s H-2A agricultural guest worker program.

On Nov. 30, the United Farm Workers and the UFW Foundation, represented by Farmworker Justice and the law firm WilmerHale, filed a federal lawsuit challenging the U.S. Department of Labor’s Nov. 5 decision to keep H-2A wage rates unchanged in 2021 and 2022, according to a news release.

The lawsuit, filed in federal court in Fresno, Calif, requests a preliminary injunction to stop the regulation from taking effect on Dec. 21, and a permanent injunction seeking to have the rule set aside.

The new Department of Labor regulation would freeze wages for 2021 and 2022 at the 2020 adverse effect wage rate level, which the release said are based on 2019 Farm Labor Survey data. In 2023 and later years, the DOL would adjust the 2020 rates by using DOL’s more general Employment Cost Index (ECI) instead of the Farm Labor Survey.

The lawsuit alleges that the DOL’s new regulation violates the federal Administrative Procedure Act in several ways, according to the release, including by failing to comply with the  H-2A prohibition against adverse effects to farmworkers’ wages, “arbitrarily and capriciously” selecting mechanisms that bear no relation to the farm labor market, and failing to give the public notice and an opportunity for comment on the wage freeze. 

“The lawsuit filed today on behalf of farmworker organizations seeks to overturn the unjustified decision by Secretary of Labor Eugene Scalia to lower wage rates of several hundred thousand farmworkers,” Bruce Goldstein, president of Farmworker Justice and one of the attorneys in the lawsuit, said in the release. “Secretary Scalia’s decision to freeze farmworkers’ wage rates under the H-2A agricultural guest worker program for two years is an utterly arbitrary and unlawful act that inflicts grave harm to some of the most vulnerable workers in the nation.”

The United Farm Workers and the UFW Foundation sued the U.S. Department of Agriculture for its Sept. 30 decision canceling the Farm Labor Survey and the resulting annual Farm Labor Report on which the adverse effect wage rate is based, according to the release. On Oct. 28, U.S. District Court Judge Drozd in Fresno issued a temporary restraining order and preliminary injunction, currently in effect, prohibiting the USDA from canceling the Farm Labor Survey and the annual Farm Labor Report.
 


Wage help needed for growers

 

Michael Marsh, president and CEO of the National Council of Agricultural Employers, said in an e-mail that under the Department of Labor regulation, H-2A wage rates would hold steady for a time but not decline.

A pause from rising H-2A wage rates is needed, Marsh said, pointing out that growers using the H-2A program pay more than just the hourly rate.

Additional costs include the provision of housing, three meals a day or facilities for workers to prepare their own, transportation into and out of the country, visa costs, subsistence and other costs.

“Farmers use the program precisely because local workers aren’t interested in jobs on farms,” Marsh said. “We know this because farmers must advertise jobs locally and offer jobs to local applicants first and the data precisely reflects local workers’ disinterest.”

Marsh said in an e-mail that there is no adverse effect on U.S. workers through the employment of H-2A temporary agricultural workers in the U.S.

“The wages compiled using the USDA’s Farm Labor Survey are so disconnected from the reality of wages actually paid to employees in the market, that it is forcing farmers to stop producing food on their land, compromising Americans’ food security and boosting the importation and Americans’ dependence upon food from foreign countries,” he said. 

“The temporary wage freeze is necessary as the DOL moves toward a different wage structure that is more equitable for both employers and workers and not disconnected from actual wages paid,” Marsh said.

“Employers have been forced to plan production years with the possibility of catastrophic increases in the AEWR in some years.”  Marsh said.

He said growers in some states experienced more than a 20% increase in H-2A labor costs in 2019 compared with the previous year.

“The unpredictability of what was being used threatens the economic viability of many farming operations and their ability to employ workers, either local domestic or temporary foreign-born, in the future.”


 

 

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