USDA’s Claims that New Rule will Replace Canceled Survey Are Refuted by United Farm Workers

The plaintiffs in an Eastern District of California case responded to the United States Department of Agriculture’s (USDA) notice on Wednesday, the same day it was filed, stating that the notice “only underscores” its argument that the USDA should continue to conduct farm surveys and reports as it has done previously. The USDA suspended the reports, causing the legal matter. 

The United Farm Workers filed the complaint against the USDA, Secretary Sonny Perdue, and Under Secretary William Northey last week. The foundation claimed that the USDA’s cancellation of the Farm Labor Survey (FLS) and Farm Labor Report (FLR) would have detrimental effects and is the only service or program used to provide necessary information. 

The USDA followed that complaint with their Notice on Wednesday to tell the court that the United States Department of Labor finalized the draft of a rule called “Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A workers).” The Office of Information and Regulatory Affairs received the draft of the Final Rule on that same day, and it is listed as being under regulatory review. This rule reportedly replaces some of the reporting aspects of the suspended survey and report. 

The defendants said that “the Department of Labor ‘intends to publish and have effective before the end of the calendar year’ this final rule ‘to ensure there is no disruption in setting the() AEWRs (Adverse Effect Wage Rates) for calendar year 2021.’” 

The plaintiffs disputed this claim, stating that the transfer of the final rule does not assure that an “adequate replacement methodology for calculating” AWERs will be effective in time for 2021 calculations. It said in the response that “the only way to assure that the DOL can promulgate AEWRs for 2021 is to require the USDA to continue with its practice of conducting the FLS and publishing the Farm Labor Report.” They cited that the rule was transferred two months after the rule’s promulgation, and alleged that shows that the timing is uncertain. 

Wednesday’s motion also said the transfer of a rule does not change their claims that “hundreds of thousands of farmworkers will suffer” economic hardship and potentially lose legal protection without the temporary restraining order they requested. They said under the current laws, the Department of Labor cannot set the AWER for 2021 without the FLS and the FLR, which was previously scheduled to be published in November. 

A video hearing on the plaintiffs’ motion for a temporary restraining order was held on Tuesday, but the order following the hearing has not yet been filed. The United Farm Workers are represented by Farmworker Justice and Wilmer Cutler Pickering Hale and Dorr. Sonny Perdue, William Northerly, and the USDA are represented by the United States Department of Justice.