H-2A wages up in the air again

The status of the 2021 H-2A program wage rates is up in the air again.

A  federal court in California has enjoined the U.S. Department of Labor’s decision to freeze farmworkers’ wages employed at farms that use the H-2A agricultural guest worker program. 

The preliminary injunction was issued by U.S. District Judge Dale A. Drozd in Fresno in a lawsuit filed by the United Farm Workers and the UFW Foundation, represented by Farmworker Justice and the law firm WilmerHale, according to a news release. The new Department of Labor regulation was set to take effect Dec. 21 and regulate wage rates beginning in January 2021. 

Michael Marsh, CEO of the National Council of Agricultural Employers, said in a Dec. 24 e-mail that he does not know if the Department of Labor will appeal the court ruling.

Farmer advocates had supported the Department of Labor rule, which would have kept 2021 and 2022 H-2A wage rates at 2020 levels, and then adjusted them beginning in 2023 and beyond by using the Department of Labor’s more general Employment Cost Index instead of the U.S. Department of Agriculture’s Farm Labor Survey. The USDA survey had long been the way H-2A wages were set. Farmers had been concerned about rapidly rising wage rates in the H-2A program believe the “pause” in wage increases was needed.

Marsh said the court ruling prevents the Department of Labor from implementing the Nov. 5 rule governing the adverse effect wage rate calculation methodology.

The judge ordered parties meet within fourteen 14 days to submit a proposed order that includes deadlines by which defendants will set the 2021 adverse effect wage rate.

In a news release, Farmworker Justice said the court ruled that the Department of Labor’s regulation violates the federal Administrative Procedure Act in several ways, including, by failing to comply with the legal requirement to prohibit adverse effects to farmworkers’ wages, and by selecting wage-setting methodologies that bear no relation to the farm labor market.  The court, the release said, also held that the DOL violated the Administrative Procedure Act by failing to give the public notice and an opportunity for comment on its new methodology for calculating wages, which was not previewed in the preliminary rule published in July 2019. 

“We are very pleased that the court entered a preliminary injunction against the unjustified decision by Secretary of Labor Eugene Scalia to lower wage rates of several hundred thousand farmworkers,” Bruce Goldstein, president of Farmworker Justice, said in the release. 

In a related case, the United Farm Workers and the UFW Foundation sued the U.S. Department of Agriculture for its Sept. 30 decision suspending its Farm Labor Survey and the corresponding annual Farm Labor Report on which H-2A wages are based. In late October, Judge Drozd issued a temporary restraining order and preliminary injunction prohibiting the USDA from canceling the FLS and the annual Farm Labor report. The USDA then said the report will be issued in February.