Agricultural Equipment Operators, Farmworkers (Crop/ Nursery/Greenhouse), Farmworkers (Farm/Ranch/Aquaculture), Graders/Sorters, Packagers/Handlers, and All Other Agricultural Workers. For the vast majority of H–2A job opportunities represented by these six Standard Occupational Classification (SOC) codes, the Department will continue to rely on the USDA Farm Labor Survey to establish the AEWRs.
Standard Occupational Codes
Outside the “Big 6” Beyond that is where things can get more confusing, and potentially more expensive. For all other SOC codes, the Department of Labor will use the Occupational Employment and Wage Statistics (OEWS) survey to establish the Adverse Effect Wage Rate for each SOC code. Some of the positions not included in the Farm Labor Survey include occupations such as Heavy and Tractor-Trailer Driver, Light Truck Driver, Bus and Truck Mechanic, Farm Equipment Mechanic, Pesticide Handler, or Industrial Truck and Trailer Operators (forklift drivers). One interesting point to note is that the OEWS survey conducted by the Bureau of Labor Statistics intentionally does not survey farms, so the results are weighted heavily towards urban and suburban wages, which of course has the potential to drive wages up when compared to rural wages.
So, if you have H-2A employees that perform some of the above duties that may be determined to fall outside of Farmworker (45-2092), then their occupational codes, and subsequent wages, could be used for future H-2A applications. Stated another way, any position that is determined to have duties that fall outside of the six Standard Occupational Classification (SOC) codes could now be subject to an individual AEWR based on the OEWS. If there is a state-specific wage rate for that SOC in the OEWS, the AEWR will be based on that wage. If there is no state-level OEWS for that SOC, the AEWR will be based on the national wage rate for the SOC in the OEWS.
For instance, in North Carolina, the AEWR for Farmworkers (45-2092) is $14.91/hour, but if the duties of that employee involve truck-driving, then the Department of Labor may determine that employee should instead be paid the OEWS wage of $18.33/hour for Light Truck Drivers (53-3033). Tat’s $3.42 higher than the AEWR. A more extreme scenario could play out in North Dakota, where a farmworker has an AEWR of $17.33/hour, but the salary for a heavy-duty truck driver reported in the OEWS is $26.41/hour. Tat’s $9.03/hour higher than the AEWR. Te reason North Dakota was chosen as an example is to highlight the potential impacts of other industries - in this case, oil - on agricultural wages.
Tis rate would not just apply to the hours they were performing that specific duty, but rather to all hours they are working. Perhaps even more concerning is that it could/ would apply to all workers on the contract for all hours they are working unless the employer separates out job duties during the
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application. For example, instead of requesting ten Farmworkers (45-2092), you might request eight Farmworkers (45-2092), one Light Truck Driver (53-3033), and one Farm Equipment Mechanic (49-3041). Each of these duties can be assigned different wage rates, but then the employer must make sure that each of those employees is sticking to each of those duties. However, in farming, of course, it is often the case that most farm workers perform many essential duties depending on the time of year, day, and even hour.
Efforts to Pause the Final Rule
Te examples above are just that, they are examples. It’s hard to tell exactly how this is going to play out in a country and industry that is as large and diverse as U.S. agriculture. It’s also hard to tell how large of an impact these new changes may have on farmworker wages and their employers’ bottom lines. However, the changes do raise enough eyebrows that many agricultural groups are digging into it. Citing the American Farm Bureau, some astute legislators have picked up on the significance of the changes that DOL is introducing with the AEWR final rule.
Two attempts are currently underway to try to push a pause on the final rule. Te first is an effort by congressional leaders to introduce a resolution of disapproval under the Congressional Review Act (CRA) for the recent DOL rule on the new AEWR methodology. If the CRA joint resolution of disapproval is enacted, the AEWR final rule would go out of effect immediately and “shall be treated as though such rule had never taken effect.”
Te second effort, the bipartisan Farm Operations Support Act, introduced by Sens. Jon Ossoff (D-Ga.) and Tom Tillis (R-N.C.), temporarily resets the AEWR at 2022 levels. While the national average AEWR in 2022 was $15.56, a sizable 6.4 percent increase over the 2021 level, it is certainly preferable to the 2023 national average AEWR of $16.62 and the new AEWR final rule described above that goes into effect on March 30, 2023.
We here at TPI will continue to monitor this topic and work with our peer associations to make sure our members’ voices are heard. If you’d like to learn more about H-2A labor or policy then please reach out to us anytime, follow our e-newsletter for updates, or attend one of our TPI conferences where this is often a topic of discussion.
Resources Adverse Effect Wage Rate from USDA-NASS Farm Labor Survey
https://www.ers.usda.gov/topics/farm-economy/farm-labor/#aewr OEWS Employment and Wage Estimates National
https://www.bls.gov/oes/current/oes_stru.htm#45-0000 State
https://www.bls.gov/oes/current/oessrcst.htm US Federal Register Notification for Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States
https://www.federalregister.gov/documents/2023/02/28/2023-03756/ adverse-effect-wage-rate-methodology-for-the-temporary-employment-of-h-2a- nonimmigrants-in-non-range
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Casey Reynolds, PhD, is executive director of Turfgrass Producers International (TPI).
TPI Turf News July/August 20 2023
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