Introduction
A federal judge in Louisiana recently issued a final judgment that will impact the way farm worker wages are calculated under the Department of Labor’s (DOL) H-2A program. The judgment, issued on August 25, vacated the DOL’s 2023 Adverse Effect Wage Rate (AEWR) final rule, which was implemented in the H-2A Program to calculate farm worker wages. This decision will affect agricultural employers across the nation and has prompted the DOL to reexamine the appropriate method for calculating wages under the H-2A program.
Background
The H-2A program was implemented by the DOL for the purpose of providing agricultural employers with a means of addressing domestic labor shortages. Under the H-2A program, employers fearing a shortage of domestic labor have the option of hiring nonimmigrant foreign workers to perform agricultural labor in a seasonal or temporary capacity. To learn more about the H-2A program, click here to read NALC Article “Rights of H-2A Workers.”
Prior to the court’s judgment in August, the 2023 AEWR governed the wages paid to foreign farm workers under the H-2A program by functioning as a floor for wages. Under the 2023 AEWR rule, wages are determined based upon the Standard Occupation Code (SOC) assigned to a worker. The category for field and livestock workers is separated into six distinct SOC codes and data from the Agricultural Labor Survey (FLS) is used to set wages based upon the specific code which most accurately reflects the workers’ duties.
Certain circumstances exist where two or more SOC codes may be applicable. For example, a worker who drives a truck loaded with farm equipment and engages in traditional farm labor would be classified as a normal farm worker. But, if that job additionally required the worker to operate semi-trucks over public roads, two SOC codes would be applicable. One code for a traditional farmworker and laborer and one for a tractor-trailer truck driver. When two codes are applicable, the 2023 AEWR Rule required that the highest applicable AEWR be used when processing an employer’s H-2A certification.
2023 AEWR Vacated
On August 25 of this year, the federal judge presiding over Teche Vermilion Sugar Cane Growers Ass’n, Inc. v. Su, 6:23-cv-00831, W.D. La, issued a final judgment which converted a preliminary injunction into a permanent injunction and vacated the 2023 AEWR. In that judgment, the court sided with the plaintiffs and declared that the 2023 AEWR rule was “arbitrary and capricious” in violation of 5 U.S.C. § 706(2)(c). “Arbitrary and capricious” is a standard of review typically seen in appeal procedures and it refers to a decision made without a reasonable basis or a sufficient consideration of all material facts and circumstances.
This case began in June of 2023, when a coalition of farmers and agricultural organizations from Louisiana filed suit against the DOL in federal district court, primarily challenging the application of dual SOCs. The complaint asserted that the DOL failed to clarify its legal authority for failing or declining to consider the economic impact of the 2023 AEWR rule, rendering the rule “arbitrary and capricious.”
In the complaint, the group of agricultural producers alleged that the 2023 AEWR Rule “unlawfully increases the wages for seasonal migrant guestworkers.” The plaintiff agricultural producers assert that the 2023 rule is incompatible with “the realities of modern agricultural work.” The complaint claimed that modern agricultural laborers must be able to perform a variety of tasks on tight schedules and often in tandem with one another, due to the seasonal nature of agricultural work. The primary flaw with the 2023 AEWR rule, in the opinion of the plaintiffs, was that it “views the variegated skill set of a modern agricultural laborer (employed seasonally) as ‘similarly situated’ to the highest paid specialist in other economic sectors (employed annually).”
The complaint claimed that “implementation and enforcement of this rule will irreparably harm Plaintiffs, as agricultural employers, by severely restricting their ability to produce food, by hampering their ability to hire new foreign and domestic labor, and by undermining the working conditions of such labor.” To prevent these alleged harms, the agricultural groups requested a declaration that the 2023 AEWR is invalid and sought both a preliminary and permanent injunction which would stop the implementation of the rule. Here, the court concluded that the group of producers had satisfied the requirements for injunctive relief. At the time, the injunction was limited to only those H-2A workers employed in the plaintiffs’ sugarcane operations located in Louisiana.
In reaching this determination, the court cited several justifications. First, the court noted that the DOL “has failed to consider or ‘reasonably explain’ the basis for its decision to calculate the AEWR for H-2A workers who drive sugarcane trucks based on the higher average wage rates for non-farm heavy and tractor-trailer truck drivers.” The court held that the record was devoid of any attempts from the DOL to “analyze the differences in the ‘work performed, skills, education, training, and credentials’ of these two groups of workers. Further, the court held that the DOL had failed to show a connection between the wages and working conditions of H-2A workers and general non-farm heavy and tractor-trailer truck drivers.
Finally, the court stated that, “the DOL appears to ignore its own guidance with respect to the SOC codes on which it bases the Final Rule.” On this point, the court noted that the duties of H-2A sugarcane truck drivers matched the SOC description for agricultural equipment operators, while the “Heavy and Tractor-trailer Truck Drivers” code lists no farm or agricultural related tasks. This was an issue for the court, as the “Heavy and Tractor-trailer Truck Drivers” code formed the basis for the revised AEWR. This led the court to side with the Plaintiffs, holding that the group had “demonstrated a substantial likelihood of success on their claim that the Final Rule is arbitrary and capricious.”
Moving Forward
In response to the court order, the DOL has stated that the methodology used in the 2010 AEWR will be applied. The 2010 AEWR will serve as the interim methodology until the DOL finalizes a new AEWR rule. In the meantime, the DOL has stated that it will be taking action to implement the court’s decision. On September 10, the DOL announced that it would be soliciting comments on proposed revisions to the H-2A Program. The deadline to submit comments is November 10, 2025.
Additionally, the USDA recently announced that it has discontinued the FLS. In a notice posted to the Federal Register on August 29, the National Agricultural Statistics Service (NASS) described the survey as “duplicative and/or no longer necessary.” In reaching this decision, the NASS noted that recent updates to the OEWS made it the “superior barometer for measuring farm wages.” The NASS stated that the discontinuation of the FLS would “minimize duplication of Federal efforts and reduce cost and time burdens to the public.” The notice additionally noted that the USDA is not bound by any statutory requirement to rely on the FLS. Despite the FLS being discontinued, the notice ended with assurances that USDA will be making efforts to provide FLS legacy data to interested parties.
To read the initial complaint, click here
To read the court order vacating the 2023 AEWR, click here
To read the court’s memorandum ruling, click here
To read the Administrative Procedure Act, click here
To view the “Understanding the H-2A Temporary Agricultural Guest Worker Program” led by M. Sean High, click here
To learn about other challenges to the 2023 AEWR, click here to read NALC article “Challenges to the 2023 U.S. Department of Labor H-2A AEWR Methodology Rule”