United Farm Workers (UFW) continued its fight against the Department of Labor (DOL) this week filing a lawsuit to permanently block the DOL from implementing a new rule on calculating H-2A Wage Rates. This is their second bold move to become a stakeholder in the H-2A program. They sued the USDA on October 14 over its decision to cancel the Farm labor Survey. The Judge in that action ordered the USDA to halt its plan to stop collecting and publishing the data. As a refresher, DOL sets a minimum H-2A Wage Rate (called the Adverse Effect Wage Rate – “AEWR”) that employers using the H-2A program must pay to both certain U.S. farmworkers and foreign guest workers. To set the H-2A Wage Rate, DOL annually reviews data from the USDA Farm Labor Survey and sets the H-2A Wage Rate by state. On November 5, 2020, DOL announced a new proposed rule that first, freezes the H-2A Wage Rate based on the 2019 Farm Labor Survey data to the year 2023, and second, shifts the data from the USDA Farm Labor Survey to the Occupational Employment Statistics survey. With the effective date originally scheduled for December, the impact of these changes are swift on employers using the H-2A program.
Previously UFW fought – and won – a preliminary injunction that temporarily blocked the USDA from halting the Farm Labor Survey that DOL relies on. Now UFW pushes the fight forward with a lawsuit for a permanent block on the DOL H-2A Wage Rate rule.
COUNSEL TO MANAGEMENT:
As this is active litigation, we will continue to monitor this lawsuit and its impact on the H-2A program closely. Our team will also be monitoring for the announcement of the next DOL Secretary who may very well rescind or make changes to the proposed rule on calculating H-2A Wage Rates at issue in the lawsuit. If you have questions about the H-2A Program or preparing for DOL changes in the upcoming year, contact the experts at the Saqui Law Group.