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UPDATE: On Dec. 23, 2020, a California federal judge granted preliminary injunction in a wage freeze lawsuit against the Department of Labor.
A farmworkers union has filed a lawsuit against the U.S. Department of Labor after a move by outgoing President Donald Trump’s administration to freeze wages for agricultural guest workers.
The new “Final Rule” regulation, announced in early November, changes the method by which prevailing wage rates for farmworkers with H-2A visas are calculated, according to a Huffington Post report.
Previously, minimum pay rates for most such farmworkers were set by a survey conducted twice a year by the U.S. Department of Agriculture (USDA); however, the Trump administration now says it intends to halt base pay increases on Labor Department data starting in 2023.
This Final Rule is scheduled to take effect Dec. 21, 2020, according to the Federal Register.
The lawsuit, filed Monday in federal court by United Farm Workers (UFW) and the UFW Foundation, argues the Labor Department’s Final Rule removes the link between the Adverse Effect Wage Rate (AEWR) and market wages, thereby removing protections for farmworkers against “adverse effects.”
The Final Rule document itself says the new regulation protects U.S. farmworkers.
“These regulations are consistent with the Secretary of Labor’s (Secretary) statutory responsibility to certify that the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed,” the document states.
But according to the UFW, the Final Rule will adversely affect farmworkers in several ways.
For one thing, the lawsuit says, the rule “AEWRs based on 2019 [Farm Labor Survey] data for two years — meaning that farmworkers’ wages will not increase by even the rate of inflation, let alone the higher rates at which farmworkers’ wages have been rising for the last several years.”
Second, starting in 2023, the Labor Department will adjust the frozen AEWRs each year using the Employment Cost Index (ECI), which measures “the change in the cost of labor by surveying various private industry sectors but not the agricultural sector.”
And finally, the lawsuit alleges the Department of Labor failed to abide by Administrative Procedure Act (APA) requirements for notice and comment before issuing the Final Rule.
“DOL’s new AEWR methodology will cause several hundreds of thousands of farmworkers already living on subsistence incomes to be paid significantly less than they otherwise would,” the lawsuit argues. “The two-year wage freeze will cause workers to be paid more than 4% less on average than they would under DOL’s current regulations.”
In addition, the lawsuit says, beginning in 2023, farmworkers’ wages will increase at a slower rate than the market rate.
“In short, farmworkers will be paid substantially less under the Final Rule.”
While the Labor Department has estimated the change in method would mean more than $1.6 billion in wages from these workers would be transferred to agricultural employers over the next 10 years, with losses for foreign farmworkers totaling about $167.7 million annually, the lawsuit says, these numbers actually underestimate the harm that would be done to farmworkers in general.
The Department of Labor “declined to estimate the costs of either lost wages or lost employment to U.S. farmworkers,” but the lawsuit alleges both U.S. farmworkers and guest workers will be “irreparably harmed” by the wage reduction.
Speaking to NPR, UFW Foundation executive director Diana Tellefson Torres called the Final Rule “reprehensible.”
“Farmworkers should be paid more, not less, especially as they work under the conditions that we’re seeing during this pandemic,” Tellefson Torres said.
Daniel Costa, an Economic Policy Institute immigration policy expert, told the Huffington Post the index the Trump administration prefers could result in larger increases for some higher-skilled farmworkers, but overall guest workers would have their wages decreased.
“This is absolutely a wage cut for migrants who are H-2A farmworkers,” Costa said. “H-2A farmworkers will not benefit from any natural wage growth that occurs [until 2023] ― during what farm owners are saying is a severe labor shortage, which is exactly when you would expect wages to grow in a free market.”
The plaintiffs are seeking injunctive relief to prevent the Labor Department from implementing or enforcing the Final Rule’s challenged regulation, an order vacating the challenged regulation, a declaration that the regulation is unlawful, and an award of attorneys’ fees and costs.
Do you agree with the Trump administration’s decision to freeze wages for agricultural guest workers? Tell us your thoughts in the comments below.
The plaintiffs are represented by Mark D. Selwyn of Wilmer Cutler Pickering Hale and Dorr LLP.
The Farmworkers Wage Freeze Lawsuit is United Farm Workers, et al. v. U.S. Department of Labor, et al., Case No. 1:20-at-00969, in the U.S. District Court for the Eastern District of California, Fresno Division.
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