On Tuesday, one day after the United States Department of Agriculture (USDA) filed a notice in the case, the plaintiffs, United Farm Workers and UFW Foundation (UFW), filed a response arguing that the notice “underscores the importance” of the preliminary injunction against the defendant granted by the Eastern District of California.
The legal suit was filed by UFW in response to the USDA’s decision and announcement that they would not conduct the Farm Labor Survey (FLS) or publish the Farm Labor Report (FLR) this year, and that the system to keep accounts of farm wages would be replaced. UFW argued that this would harm farm workers and that it was breaching the USDA’s duty to provide the information.
The notice was reportedly a “response to a factual representation in Plaintiffs’ most recent filing,” the plaintiffs said that a final rule from the Department of Labor (DOL) ignores that, after the court’s order requiring the USDA to continue to do the FLS and FLR, the FLS data from 2020 would be available to calculate Adverse Effect Wage Rates (AEWRs) for 2021. The defendants said they provided the notice “to clarify the timeline” for the FLS and FLR which was previously scheduled to be in October. The order requiring the survey and report to be completed came from the court on October 28, not leaving time to complete the FLS and FLR under the previous schedule.
In a declaration from Hubert Hammer, administrator of the U.S. National Agricultural Statistics Service, attached to the notice, the current schedule for the survey and report was outlined. Hammer said the pre-mailing steps for the survey questionnaires were completed on November 2, but that the final FLR is not expected before the end of the calendar year. The declaration said they expect the publication “within nine weeks of the publication of the reinstatement notice in the Federal Register.”
UFW in its filing said the “proper response” by the USDA “would have been to take every step necessary to make up for its delay in conducting the FLS in October.” The plaintiff accused the USDA of “trying to leverage their own delays to justify dissolving the preliminary injunction and to insulate the DOL’s new rule, which irrationally freezes wages for H-2A guestworkers and U.S. farmworkers.”
The plaintiffs argued that the delay by the USDA only makes the court’s requirement that they complete the FLS and FLR more necessary. They said the notice did not explain why the FLS would take longer than normal, which is reportedly a three-week collection period. UFW concluded that the “Defendants should not be rewarded for their own delay,” and that the injunction should remain in place and the USDA should publish the FLR quickly so that the AEWRs will be published in December.