Suspended labor survey sows confusion over H-2A wage rates
How much growers will pay for guest workers in the H-2A program in 2021 is unknown because of the U.S. Department of Agriculture’s decision to suspend a report used to set wages.
The Trump administration recently suspended the Farm Labor Survey, which historically is used by the Department of Labor to set H-2A pay rates.
Michael Marsh, president and CEO of the National Council of Agricultural Employers, said it’s unclear how the wage rates will be established for the program. The decision could be related to a long-anticipated proposed rule from the Trump administration that will reform the H-2A program, Marsh said.
Labor advocacy group Farmworker Justice reported that the suspension means the Department of Labor will use state or federal minimum wages for the guest worker program.
“The result will be massive wage cuts to U.S. farmworkers and foreign guestworkers at H-2A program employers in 2021,” according to a news release from Farmworker Justice.
Survey suspended
On Sept. 30, the USDA’s National Agricultural Statistics Service announced it was not collecting data for the survey in October, and the USDA said it will not publish the biannual Farm Labor report in November.
The survey provides statistics on the number of agricultural workers, hours worked and wage rates. The H-2A program uses the data to set adverse effect wage rates, which are the minimum wages for workers.
“USDA has determined the public can access other data sources for the data collected in the Agricultural Labor Survey,” according to a USDA notice in the Federal Register.
“The Department of Labor has, for years, had a contractual relationship with the Department of Agriculture, to perform the Farm Labor Survey,” Marsh said.
Marsh said the decision surprised him, because the Department of Labor provided USDA funds for the survey.
Bigger plan
Marsh said the Trump administration published a notice of proposed rulemaking on H-2A changes in July of 2019 and the NCAE filed comments on the notice in September of that year.
“We have been waiting for over a year for that rule to come out,” he said.
The rule could include proposed changes to how adverse effect wage rate is figured, he said.
NCAE petitioned the Department of Labor in April 2019 to make a determination on an annual basis whether or not there was an adverse effect on domestic workers from the H-2A program.
The group maintains there is no adverse effect on domestic workers because of the H-2A program, so no adverse effect wage rates should be set.
Marsh said the labor department has said it is considering all comments about the H-2A program, including the NCAE’s petition about the adverse effect wage rate.
Next steps
Marsh said the expected administration proposal to change the H-2A program could be published soon, perhaps before the election.
The existing wage rates are in effect until Dec. 31. How rates will be determined next year is uncertain, he said.
“Nobody saw this coming,” he said.
While the USDA suggested other data sources, some of those alternate sources of data are impractical and dated, said Marsh, who predicts there will be lawsuits from either farmworker groups or farmers no matter what is done.
If Joe Biden is elected, his administration could try to roll back any H-2A reforms from the current administration.
Marsh said it is too soon to know what will happen.
“When I look around the ag community, I’ve pretty much seen that folks are just taking a wait-and-see kind of approach, because there’s not much you can do you,” he said.
NCAE has long advocated for lower wage rates for the H-2A program.
In an August letter to the Department of Labor, the NCAE said the adverse effect wage rate is increasing significantly more rapidly than nonagricultural wages.
The NCAE said while the federal minimum Wage is $7.25, every adverse effect wage rate created for the 2020 calendar year using the 2019 Farm Labor Survey is at least $11.71 per hour, and the highest mandatory minimum adverse effect wage rate is $15.83.
“It is highly unlikely therefore that admission of H-2A workers is having an adverse effect on U. S. workers similarly employed but is, in fact, a mechanism for unsustainable wage increases beyond normal market conditions,” according to the NCAE letter.
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