The U.S. Department of Labor proposed a modified formula for calculating minimum wages for agricultural guest workers on H-2A visas after a California federal judge struck down a prior proposal in December 2020 for failing to justify two key changes, reported Law360. The DOL’s proposal originated from its concerns that these workers were getting paid less than the industry's prevailing wage rate. According to attorney Kristi Boswell, however, the proposed solution could result in further instability depending on workers' job descriptions and responsibilities. She told Law360 that "You will have the state workforce agency making determinations or the Department of Labor making determinations on these applications…You may [have] one worker whose primary duties are farm work, but maybe they do another task moving equipment or moving a truck, and all of a sudden they're now in the higher wage category."
Boswell went on. “Employers have long voiced concerns that the guest workers' wage rate is arbitrarily high and that the USDA survey data used to calculate wages leads to spikes as high as 20 percent in some regions.” The DOA stands by its proposed rule, stating that, despite higher-than-average wage increases in some recent years, farmworkers remain among the lowest paid workers in the U.S. And the non-profit organization Farmworker Justice, that works to empower migrant and seasonal farmworkers to improve their living and working conditions, favors the proposed rule, seeing it as “a welcome return to the approach taken in years preceding the Trump administration's attempted rule change,” which in 2020 had proposed the freeze to assist farmers who lost profit and fallowed land during the pandemic.
The wage freeze was welcomed by agricultural officials as the ruling would have locked in the minimum wage established in 2019 that employers must pay foreign agricultural workers with H-2A visas. It was estimated to save farmers and growers around $1.6 billion in labor costs over 10 years
But farmworker advocates hit the Department of Agriculture with a lawsuit to stop the wage freeze from taking effect. The wage increase is based on the USDA’s annual survey findings on farm labor, released on Nov. 24. The survey and its findings are used to determine the rate of pay for temporary, seasonal agricultural workers employed through the H-2A program, which allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the U.S. to fill temporary agricultural jobs.
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The DOL gave the public until Jan. 31 to comment on the proposed rule change.