The Department of Labor released an interim final rule, which revises the way in which the Adverse Effect Wage Rate is calculated for the H-2A guestworker program.
This interim final rule is timely because the USDA recently said it would no longer conduct the Farm Labor Survey, which had been previously used to calculate the H-2A wage rate. And a recent court case in Louisiana, which vacated a 2023 Department of Labor rule that established a skill-based methodology for H-2A non-range occupations.
The new system will use state-level data from the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics survey. The interim final rule also calls for two skill-based wage categories within each occupational classification.
This rule is available for public comment on the Federal Register’s website through Dec. 1.
The other movement of note, too, is that the Department of Homeland Security announced a new rule to streamline H-2A application procedures.
Chris Schulte, a partner with Fisher Phillips, a national law firm that focuses on labor and employment law for employers, says this move modernizes the process, replacing printed H-2A visa petitions with electronic applications.
“They’ve done it so that early in the process, while the DOL is still looking at [the H-2A application], you can file electronically to Homeland Security, they’ll look at it together at the same time and coordinate,” he says.
Some of the Changes
While in the past the Department of Labor grouped states together to create regional Adverse Effect Wage Rates, now each state will set the rate individually.
“It is good news for people who are doing kind of hand harvesting or kind of on-farm work, equipment operators, livestock workers,” he says. “The Farm Labor Survey data versus the Bureau of Labor Statistics’ data is kind of comparable. Some states are up, some states are down, depending on who’s doing the survey, just because they’re asking different people what their wages are.”
Schulte also says there are wage ranges — entry-level and more experienced workers. This is something that the Department of Labor did briefly in 2008.
“Instead of just pegging everything to the middle, find the average and make that the floor. They are a little more flexible about it. And then the acknowledgement that you’re also paying other things than what a domestic employer would pay to workers who take their money and go pay rent.”
Schulte says he hopes there will be a little more clarity around coding decisions of how wages will be assigned with this interim final rule. Schulte says while around 90% of jobs will fall under the new category established in the rule, the rule does indicate that some types of farm work won’t fall under the set categories. This might be a truck driver, first-line supervisor, farm construction, etc.
He says the Department of Labor has indicated those other codes could be applicable, outside of the “big five” Standard Occupational Classifications.
“There’s concern that this does not address the truck driver problem that gave rise to the three cases against the Department of Labor to challenge the old rule,” he says. “They said that it was arbitrary and capricious, and they were going to vacate it, but it seems like we’re back where we were before.”
He says how a job gets coded, and skill level will become important with this rule. But questions remain as to how much training moves a worker from entry-level to experienced, what jobs are combined, and which need to be filed separately.
“People are going to have to think about which jobs are combined, and which jobs are kept separate, based on which wage is going to be assigned to it,” he says.
And while this rule is effective as of now, those who filed H-2A applications on Sept. 30 can’t use the new methodology.
“There’s some people that may have to withdraw and then refile it,” he says.
What You Need to Know
First, John Hollay, director of workforce and labor policy with the International Fresh Produce Association, says growers should take to heart that they’re being heard.
“They’ve been asking for help, begging for help the last many years,” he says. “And finally, we have an administration that answered that call.”
Second, Schulte says, is that it’s a good time to comment on the interim final rule.
“This is a great opportunity to kind of show the department you appreciate what they’re trying to do,” he says. “And then maybe identify places where they can do it better.”
Third, there could be legal challenges to the interim final rule.
“Historically, that’s been the case,” Schulte says. “When the rule came out in ’08 to lower wages, [there] were lawsuits.”
Hollay says, too, some clarity will come as growers begin applying for H-2A visas and share feedback on the process.
Lastly, Hollay says, the work isn’t over. While a rule is an important step, Hollay says it’s critical to have a permanent solution codified into law.
“There’s still some administrative changes that we think can be made, but there’s also important congressional action that is absolutely needed to cement these changes for future farmers,” he says. “So, the pressure is really moving on to Congress right now to solidify some of these improvements and ensure that the relief is there for years to come.”
Your next read in this series:
- What Does the Future Hold for Labor in an Ag Tech World?
- Will Autonomous Harvest Reach the Goal Line?
- What Workers Think of the Dignity Act
- Farmworkers Say Their Role Is Essential ‘All the Time’
- ‘Crisis’ Point: Urgency Builds for Immigration Reform in Agriculture
- Overtime laws make it almost impossible to farm, growers say
- Growers say the current state of H-2A is untenable
- Much work remains to solve ag labor issues
