UPDATE ON DOL H-2A RULE CHALLENGE Compiled by Suz Trusty
In the article, “Important H-2A Program Update,” Grower Talks' Editor Jen Zurko shared new information about the H-2A visa program. Earlier this year, 17 states and two organizations filed suit against the Department of Labor (DOL) over the final H-2A rule titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States (Final Rule).” Te Final Rule was set to go into effect on Tursday, August 29, 2024.
In a posting, “Challenges to the 2023 U.S. Department of Labor H-2A AEWR Methodology Rule,” the National Agricultural Law Center addressed this issue, providing the following background. Te H-2A program, which allows employers to employ foreign nationals to fill temporary U.S. agricultural jobs, plays an essential role in the U.S. agricultural workforce. According to the U.S. Department of State, almost 300,000 H-2A visas were issued in 2022, making up approximately ten percent of overall agricultural labor. In the past few years, DOL, the agency that issues H-2A certifications and oversees compliance with labor laws, has proposed and adopted rules to amend the H-2A program, including the February 28, 2023, rule amending the adverse effect wage rates (“AEWR”) methodology. Te purpose of the new rule, according to the DOL, is to “improve the [AEWR’s] consistency and accuracy based on the work actually performed by these workers and to better prevent H-2A workers’ employment negatively affecting the wages of U.S. workers in similar positions.”
Under the rule, employers seeking to hire temporary agricultural workers through the H-2A program must certify that “such services or labor will not adversely affect the wages and working conditions of workers in the United States similarly employed.” One of the ways DOL determines that is by using the AEWR, which is the minimum wage that employers must pay H-2A workers. Te AEWR for range occupations (all those involving herding and production of livestock on the range) is the same monthly rate across all states. Te AEWR for non-range occupations is a set hourly rate for each state, which is the same rate for six occupational classifications. Under the final rule, DOL has developed two methods for determining the AEWR for non-range occupations based on whether the occupation is included in the U.S. Department of Agriculture’s (USDA) Farm Labor Survey. And, the final rule adds a provision, “If the job duties on the job order cannot be encompassed within a single occupational classification, the applicable AEWR shall be the highest AEWR for all applicable occupations.”
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As the Grower Talks’ article and multiple ag-based media reported, right before the deadline, a federal court found that the Final Rule violates the National Labor Relations Act (NLRA) as it attempts to unconstitutionally create law, infringing upon Congressional authority. It also found that DOL’s actions were not deemed in “accordance with law” as required by the APA. While the DOL may assist Congress, it may not become Congress. Te Court found that DOL has attempted to create rights that Congress has not legislated, such as a right to collective bargaining for agricultural workers.
Further, the Final Rule would cause financial harm to both the plaintiff states and plaintiff organizations, including increased administrative costs for state workforce agencies and employers, as DOL anticipates that changes to the annual effective date of new AEWR could cost farms nationwide between $12 and $20 million over the next ten years. Tese findings align with the Eleventh Circuit’s ruling that “unrecoverable monetary loss is an irreparable harm.”
Based on these findings, the Court ruled against the NLRA. However, the Court decided not to grant a nationwide injunction, so the injunction applies only to the plaintiffs. Tus, the Court’s ruling now prevents DOL from enforcing the Farmworker Protection Rule, while the injunction is in place, in the states that filed the suit: Georgia, Kansas, South Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas and Virginia.
As the Grower Talks’ article reported, since the ruling, DOL has put forward a statement announcing the delay in the Transition Schedule for Implementing the H-2A Application and Job Order Associated with the 2024 Farmworker Protection Final Rule. Te FLAG (Foreign Language Application Gateway) system is not set up to identify and process applications differently based on which state the application originated. Consequently, the DOL has delayed updating the FLAG system (IN ALL STATES FOR THE TIME BEING) and will continue to process applications according to the previous forms. TPI will continue to monitor this situation.
Suz Trusty is co-editor of Turf News.
TPI Turf News November/December 2024
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