Farmworker advocates challenge H-2A pay freeze in court

In a lawsuit accusing the Trump administration of trying to suppress wages, farmworker groups asked a federal judge to set aside a Labor Department rule for agricultural guestworkers that could cut their earnings by $170 million over a decade. The Labor Department rule, which indirectly affects wages for all farmworkers, is scheduled to take effect on December 21.

The advocacy group Farmworker Justice said the estimated drop in wages would result from the Labor Department’s new approach to calculating the minimum wage, known as the adverse effect wage rate (AEWR), for foreigners working under H-2A visas in the United States. The AEWR is intended to protect pay rates for U.S. workers.

“(Labor) Secretary Scalia’s decision to freeze farmworkers’ wage rates under the H-2A agricultural guestworker program for two years is an utterly arbitrary and unlawful act that inflicts grave harm to some of the most vulnerable workers in the nation,” said Bruce Goldstein, head of Farmworker Justice and an attorney in the lawsuit, filed in federal court in Fresno, California.

The Labor Department said its rule would stabilize H-2A wages for 2021 and 2022 at this year’s levels. Goldstein said the actual effect was “to lower wage rates of several hundred thousand farmworkers.”

Under the new rule, the AEWR for most field and livestock workers would be adjusted, beginning in 2023, by the percentage change in the Labor Department’s employment cost index for wages and salaries in the preceding 12 months. Until now, the AEWR was based on a variety of sources, such as minimum wage laws, union contracts, and local labor surveys. The USDA said on September 30 that it would end its semiannual Farm Labor report, one of the sources for the AEWR; a federal judge ruled the USDA should continue to survey agricultural pay rates.

Agricultural employers say H-2A wages have risen rapidly in recent years while the labor supply has tightened.

The lawsuit alleges the Labor Department violated rule-making procedures by adopting a formula that bears no relation to the farm labor market and by failing to allow public comment on the effective freeze in wages. Farmworker Justice said one-third of farmworker households have incomes below the poverty line.

Produced with FERN, non-profit reporting on food, agriculture, and environmental health.
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