A federal judge has told labor officials they must rework how they determine H-2A wages.
Nothing has changed yet. The current Adverse Effect Wage Rates remain in effect until the U.S. Department of Labor comes up with a new system, but employers could be on the hook for some backpay.
On Aug. 26, in response to a lawsuit by the United Farm Workers of America, Judge Kirk Sherriff of the U.S. District Court for the Eastern District of California ruled that the federal government’s recent changes to AEWR calculations are unlawful.
AEWR, designed to prevent the wages for temporary foreign workers from undercutting wages for U.S. employees, has been a long-running topic of dispute between farmers and workers’ rights groups.
Employers with H-2A employees must pay the highest of AEWR, state minimum wages, federal minimum wages, collectively bargained rates or prevailing wages. And whatever they offer to H-2A workers, growers must also extend to domestic workers.
In October last year, the U.S. Department of Labor used an interim final rule to scrap the process of setting regionalized AEWRs based on the U.S. Department of Agriculture’s Agricultural Labor Survey. In its place, it set up a state-by-state matrix with two tiers — one for entry-level and another for more experienced workers — based on U.S. Bureau of Labor Statistics surveys. That new rule also sets a higher floor for domestic workers, which factors in the cost of the housing that is required to be provided to guest workers under the H-2A visa program.
In most cases, the new regulations in effect lowered AEWRs — a change praised by employer groups who had long argued that the rules consistently drove up wages beyond market value and above what specialty crop growers could afford. The Northwest Horticultural Council, which represents fruit growers in Washington, Idaho and Oregon in federal matters, joined several ag organizations in filing a court brief supporting the change.
The UFW filed a lawsuit arguing that the U.S. Department of Labor used the interim final rule to deliberately lower AEWR without the public process required by traditional rulemaking.
This week’s 28-page ruling sided with the UFW, calling last year’s alterations “arbitrary and capricious” and ordered the USDOL to “promptly generate a new methodology for calculating AEWRs.”
The UFW also asked the court to award back pay for wages earned from the time of the ruling until new calculations are set. The judge declined to decide that issue yet but ordered USDOL to notify growers that a back-pay ruling is still possible. •
