On October 13, 2020, United Farm Workers (“UFW”) sued the U.S. Department of Agriculture (“USDA”) in federal court to challenge its September 30, 2020 decision to stop conducting the Farm Labor Survey (“FLS”). The U.S. Department of Labor (“DOL”) uses the FLS to calculate the Adverse Effect Wage Rate (“AEWR”) for agricultural guest workers under the H-2A program.
On October 28, 2020, the court granted a temporary restraining order (“TRO”) and preliminary injunction preventing the United States Department of Agriculture (“USDA”) from discontinuing the FLS. The Order requires the USDA to proceed with collecting data for the FLS, to be published in the November 2020 Farm Labor Report (“FLR”). The order can be found here. The court found that if the FLS was not conducted as scheduled, foreign and domestic farmworkers would suffer irreparable harm in the form of lower wages.
Under DOL regulations, H-2A employers must offer and pay U.S. and foreign workers the highest of the AEWR, local prevailing wage, a collective bargaining wage, or the state or federal minimum wage. The court was persuaded that without the published FLS, many farm workers could see a substantial pay cut.
In California, the AEWR is $14.77 per hour. The state minimum wage is $12 per hour for employers with 25 employees or less and $13 per hour for employers with 26 employees or more, but will increase by a dollar per hour each year until it reaches $15 per hour for all employers in 2023.
COUNSEL TO MANAGEMENT:
The case is not over, but for now, the FLR and the AEWR are expected to issue as usual. Employers must continue to be diligent about the proper wages to be paid to foreign and domestic farmworkers and be on the lookout for future changes to the AEWR. Be watchful for future e-blasts with updates on this case. If you have any questions about the proper wage rate for H-2A employees, contact the experts at The Saqui Law Group.