In a decision praised by farmworker advocates, the U.S. District Court for the Eastern District of California has issued a temporary restraining order and preliminary injunction against the U.S. Department of Agriculture’s decision in September to suspend the annual Farm Labor Survey.
Unless the decision is appealed, the decision means that the USDA must conduct the Farm Labor Survey and issue its annual USDA Farm Labor Report in November.
The survey is used to determine the adverse effect wage rate for the Department of Labor’s H-2A guest agricultural worker program. The United Farm Workers and plaintiffs sued the USDA for its decision to suspend the survey. The UFW argued that, in the absence of the survey, wages for guest workers would decline sharply because the Department of Labor would not have data to establish new wage rates other than state minimum wages.
Micheal Marsh, president and CEO of the National Council for Agricultural Employers, said he did not know whether the USDA will appeal the decision from the district court.
“They could ask for a stay of the lower court’s order pending appeal,” he said.
Another relevant development, he said, is a Department of Labor proposal to create a new method to determine H-2A wages, which is in the final review stage at the White House Office of Information and Regulatory Affairs.
“We should see that part sooner rather than later,” Marsh said.
The industry also is waiting on other parts of an expected rule from the Department of Labor on H-2A reform, Marsh said.
Court decision
If the Department of Labor relied on state minimum wages rates instead of USDA survey data, the H-2A wage paid in California would be $14, at least 77 cents lower per hour than if the adverse effect wage rate would have been calculated, according to the lawsuit.
In Florida, the 2020 H-2A adverse effect wage rate is $11.71 per hour, while the state minimum wage is $8.56.
“The court finds that plaintiffs (UFW) are likely to succeed on the merits of this claim. As plaintiffs note, defendant USDA’s cursory, one-page decision provides no indication that the USDA considered the impact on farmworker wages caused by its decision to eliminate the (survey),” according to the Oct. 28 court opinion from Judge Dale Drozd.
Bruce Goldstein, president of Farmworker Justice, said the group was pleased with the court action.
“The USDA’s sudden cancellation of the Farm Labor Survey of employers that sets the principal H-2A wage protection is an end-run around changing the H-2A regulations in a cruel effort to slash farmworkers’ wages,” Goldstein said in a news release. “Farmworkers are among the lowest-paid workers and among the most vulnerable workers during the COVID-19 pandemic.”
The suspension of the USDA Farm Labor Survey would mean that the applicable H-2A wage rates for most workers in 2021 would not be a measure of market-rate wages, Farmworker Justice said in the release. The group said most farmworkers would be offered the state or federal minimum wage, which is “substantially lower” in all 50 states than the adverse effect wage rates.
