USDA Continues to Fight Injunction Against New Survey Rule

The United States Department of Agriculture (USDA) continued its push to pass the responsibility of completing surveys on farmworker wages to the Department of Labor (DOL) on Monday. It appealed the Eastern District of California’s decision to grant a Temporary Restraining Order and a Preliminary Injunction forcing the department to complete the surveys as they have historically done this year, rather than implementing the new rule which the plaintiffs purported would not give them the required information for next year’s growing season. 

The USDA, its secretary Sonny Perdue, and its undersecretary William Northerly appealed the decision against them to the Ninth Circuit. The defendants also appealed a decision by the court to deny their motion to modify and dissolve the prior injunction and restraining order.   

In September, the USDA put a notice in the Federal Register, alerting the public that it was stopping production of the Farm Labor Survey and Farm Labor Report, which are used by the DOL to compute Adverse Effect Wage Rates used to determine the wages for farmworkers, and hiring for migrant workers. 

The DOL in November, after the present lawsuit was filed, published a rule detailing the process it would use to replace the USDA survey, however, the plaintiffs continued to argue that it would not be ready in time to mitigate harm to farmworkers in the next growing year, and that it and other farming groups had not had adequate time to review the new policies. Last week a preliminary injunction was granted in a separate suit with the same plaintiffs stopping the DOL from implementing its rule. 

The plaintiffs, the United Farm Workers, have explained that farms are only able to hire H-2A workers if the results of the USDA survey and the DOL’s Adverse Effect Wage Rates show that it will not have a negative effect on U.S. worker wages. They purported that not having the information for the 2020 year could be detrimental to workers and farms. 

The USDA has argued that it will not have the time to complete the surveys, which are typically completed in April and October, this year and that the new rule is sufficient to fill the gap left by cancelling the surveys. The department claimed that the injunction against it should not be needed after the DOL rule was published in early November. 

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.