Court Rules DOL Must Give Back Pay to Farm Workers Following Delayed 2021 Wage Rates

In an order filed on Friday, the Eastern District of California granted a request from United Farm Workers and UFW Foundation (UFW) to extend injunctive relief previously granted to the plaintiffs by requiring the Department of Labor (DOL) to direct employers to give farm workers back pay based on increased 2021 wage rates. 

The initial injunctive relief was given on Dec. 23, 2020 and stopped the defendant from implementing a Final Rule published in November which would alter how the department surveys and reports farmworker wages. The court ruled that the DOL should still calculate Adverse Effect Wage Rates (AEWR) for 2021 as they had previously, rather than rushing a new process through. In January, the court gave additional details regarding the injunctive relief in a supplemental order. 

In a similar lawsuit against the United States Department of Agriculture, the same court granted UFW’s request to also require the USDA to complete the Farm Labor Survey, which is a part of the process to calculate the wages and had also been replaced with a new rule. Both lawsuits filed by UFW alleged that the new process was not sufficient and the wage rate information is vital for farmworkers, specifically those on H-2A visas. 

The motion addressed by the current order asked the court to require the DOL to comply with the section of the preliminary injunction which required them to direct H-2A employers to adjust wages. The Eastern District of California noted that the motion was not actually a “true motion to enforce compliance” because it lacked a request for the defendant to be held in contempt, so it considered it a motion for further injunctive relief. 

Under the AEWRs published under the injunctive relief granted by the court, the 2021 rates are reportedly “a significant pay increase for farmworkers.” According to the order, the 2021 AEWR in California is 8.6% higher than the 2020 AEWR. The plaintiffs argued that because the workers would have received higher wages beginning in January if the surveys and rates were published when initially scheduled, the workers should be paid for the difference in the wages.  

The court agreed with this argument, and noted that the government created this issue by not timely publishing AEWRs before the end of the year. The court said in the order that the extension of the deadline for the DOL to publish AEWRs and the extension of use for the 2020 AEWRS, was to allow the government time to complete the survey and determine wage rates. They determined that “equitable restitution” should be granted. Thus the court determined that the farm workers should not have to bear the costs of the delayed wage rates. 

According to the order, the defendants alleged that they did not have power to require employers to give the backpay. The court did not disagree, but said that the plaintiffs “persuasively argued that consideration of this factor is entitled to little weight.” 

The United Farm Workers are represented by Farmworker Justice and Wilmer Cutler Pickering Hale and Dorr and the USDA and the DOL are represented by the United States Department of Justice.