Farm Workers Say New DOL Rule for Determining Wages is Unlawful

The United Farm Workers and UFW Foundation (UFW) filed a lawsuit against the Department of Labor (DOL) and its secretary, Eugene Scalia, in the Eastern District of California on Monday, alleging that the department’s new rule for determining wage rates for farm workers and foreign H-2A guest workers will have a detrimental effect on the wage rates. UFW said the system would “cause several hundreds of thousands of farmworkers already living on subsistence incomes to be paid significantly less than they otherwise would.” 

The lawsuit claimed that the DOL is responsible for “ensuring the economic security of U.S. farmworkers,” and ensuring that those hired under the H-2A guestworker program are not causing a decrease in wages or other detrimental effects for United States citizens who are employed in similar positions. One way the DOL accomplishes this is by determining an Adverse Effect Wage Rate (AEWR), which applies to foreign guest workers and United States farmworkers. 

This lawsuit follows one filed by the same parties against the United States Department of Agriculture (USDA) where the plaintiff alleged that the USDA breached its duty by canceling the Farm Labor Survey and Farm Labor Report, which was previously used by the DOL to determine the AEWR. The USDA argued in response that this rule from the DOL would replace the survey previously done by the USDA to help determine the AEWR. UFW in that lawsuit is asking the court to require the USDA to complete the survey as they previously did. The plaintiffs are represented in both cases by Wilmer Cutler Pickering Hale and Dorr LLP

In the present complaint, UFW purported that the new DOL rule, published on November 5 in the Federal Register, is not effective because it freezes the AEWRs based on data from 2019 and does not adjust the minimum wage rate by the rate of inflation until at least 2023. The DOL is accused of “ignoring or disregarding its own pronouncements that H-2A wages must be closely linked with actual market wages paid to farmworkers to protect against adverse effects.” 

Monday’s complaint alleged that the final rule, which is set to become effective later this month, breaches the Administrative Procedure Act and should be set aside. UFW claimed the rule was “arbitrary and capricious” and that the DOL did not provide sufficient reasoning for freezing the AEWR. The plaintiff also contended that the DOL did not comply with the commenting and notice requirements for the final rule. 

UFW asked for the court to grant it injunctive relief, preventing the rule from taking effect, an order vacating the regulation, and a declaration that the regulation breaches the Administrative Procedure Act.