A federal judge is blocking the Trump administration from carrying out changes to the H-2A minimum wage rates that would hold down annual pay increases and potentially encourage farms to import more foreign workers under the visa program.
The reforms released by the Labor Department on Nov. 2, shortly before the election, represented a win for farm groups that been calling on the administration to stop basing the rates on a regional survey of farmworker pay that led to frequent spikes in H-2A wages.
The United Farm Workers filed suit to block the Labor Department rule from being implemented, and U.S. District Judge Dale A. Drozd in the Eastern District of California granted a preliminary injunction on Wednesday.
For most H-2A workers, the Labor Department rule would freeze the H-2A “adverse effect wage rate,” or AEWR, for 2021 and 2022 and then base future increases on a national average measure of wages known as the Employment Cost Index, as reported by the Bureau of Labor Statistics.
The judge’s order requires the Labor Department to continue basing the AEWR on an annual Agriculture Department survey of farmworker wages. Ahead of the release of the Labor Department rule, USDA announced that it was killing the Farm Labor Survey but was forced to relent after Drozd on Oct. 28 ordered the department to continue doing it.
In his latest ruling, Drozd agreed with UFW that cutting H-2A wages would harm domestic workers. The AEWR was intended by Congress to insure that farms couldn’t use H-2A to undercut domestic wages.
“Plaintiffs note that the Final Rule itself acknowledges that its methodology could result in employers hiring H-2A field and livestock workers at the expense of U.S. farmworkers … and that those lost job opportunities will cause substantial, incurable hardship for plaintiffs’ members,” Drozd wrote. “Thus, according to plaintiffs, their U.S. farmworker members would also be irreparably harmed through the loss of their jobs.”
In its economic analysis of the rule, the Labor Department acknowledged that the wage cuts would encourage farms to rely more heavily on foreign workers imported under the H-2A program. Most H-2A workers are Mexican.
The judge said Trump administration officials don’t "dispute that thousands of plaintiffs’ members and farmworkers across the country would be paid substantially less under the Final Rule compared to the 2010 Rule’s methodology and instead are merely arguing that the court cannot grant effective relief because FLS data is not yet available.”
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The Labor Department didn't immediately respond to a request for comment on the ruling.
The wages in USDA’s Farm Labor Survey increased annually by 4.5% from 2015-2019, while the ECI rose by an estimated 2.5% a year over the same period.
The Labor Department rule also was intended to separate wage requirements for supervisors from other workers. Wages for supervisory employees hired under the H-2A program would be calculated under the rule not on the ECI but on the average hourly wages for the occupational classification reported by the BLS Occupational Employment Statistics Survey program.
Michael Marsh, president and CEO of the National Council of Agricultural Employers, said his group has petitioned the department twice in the last two years change the wage rate formula "by following the statute and first making the determination as to whether an adverse effect (necessitating an AEWR) is visited upon domestic workers through the employment of H-2A temporary workers.
"Unwittingly, UFW has made the case farmers have been making that the imposition of the AEWR determined through the flawed data generated by the Farm Labor Survey and its inclusion of H-2A wages, piece rates, overtime and even Christmas bonuses, will expedite imports of foreign products threatening US national security."
