Court Upholds Labor Department Wage Rates for H-2A Workers

WASHINGTON, D.C – In March, a federal court denied a request by growers to throw out wage rates for temporary foreign workers that are set by the U.S. Department of Labor (DOL) to protect American farmworkers. The U.S. District Court for the District of Columbia turned back the growers’ lawsuit to stop implementation of new Adverse Effect Wage Rates (AEWR), which set wages for foreign workers hired by U.S. growers under the H-2A program visa program. The ruling, which will keep at least an estimated $123 million in the pockets of H-2A workers, will benefit U.S. laborers who compete with or work alongside the foreign farmworkers.

“This is a victory for us, because growers won’t be able to use cheap foreign labor to drive down wages for U.S. farmworkers,” said Olegario Lopez, one of the defendants represented by Texas RioGrande Legal Aid (TRLA). He has worked for years alongside H-2A workers. “But I’m also proud to have been able to protect the wages of all farmworkers.”

 The suit to stop implementation of the rates was filed on Jan. 7 against the DOL by Nevada onion grower Peri & Sons Farms, Inc. and the National Council of Agricultural Employers (NCAE). In January, three South Texas farmworkers, who are represented by Texas RioGrande Legal Aid (TRLA) and Public Citizen, joined the suit as defendants with the DOL.

 In the March 18 ruling, the court decided that the growers had waited too long to challenge the AEWR formula. Because the statute of limitations had run out, the court lacked jurisdiction over the growers’ claims.

”This ruling keeps a whole lot of money in the pockets of hard-working American farmworkers,” said Douglas Stevick, one of the TRLA attorneys representing Lopez and the other South Texas workers.

The AEWR is the minimum hourly rate that employers seeking to bring H-2A workers to the United States typically must offer both them and U.S. workers. The rates are set annually for each state by the DOL, and the formula for calculating it has been in place since 2010. But this year the Nevada onion grower and the NCAE sought to block the rate by challenging the DOL’s longstanding methodology.  

On Jan. 28, a hearing took place on the growers’ request for a preliminary injunction to block the new AEWRs. Former TRLA attorney Edward Tuddenham argued for the three farmworkers and the United Farm Workers, which also intervened as defendants in the suit.   

Stevick says TRLA conservatively estimates that under the 2019 AEWRs, H-2A workers will earn at least $123 million more than they would without the new rates. “That brings higher wages to U.S. laborers who work alongside the H-2A workers, because they must be paid at least as much as the H-2A workers,” he said. “Even more importantly, with the AEWRs in place, growers can’t undercut the wages of U.S. workers by hiring H-2A workers at cheaper rates.”

 “Public Citizen has been vigilant in making sure that the DOL follows the law,” said Michael Kirkpatrick, an attorney at Public Citizen. “The agency did the right thing and defended the wage rates. We intervened to support the DOL and to make sure that farmworker wages were protected.”

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