Adverse Effect Wage Rates Rule Challenged

Josh McGillLabor, Legal

In late February, the U.S. Department of Labor (DOL) pushed through a new methodology used to determine the hourly adverse effect wage rates (AEWR) for agricultural employers. The rule became effective March 30.

adverse effect wage rates
Jamie Fussell

Florida Fruit & Vegetable Association (FFVA) Director of Labor Relations Jamie Fussell discussed the action’s impact on growers:

Simply, the new rule may mean that multiple wages will now apply to an H-2A contract, with the highest being the required AEWR for all workers on the contract (and all U.S. workers in corresponding employment), rather than the singular AEWR that the industry is accustomed to. The DOL will look at different wage surveys to determine which wage rates apply to which H-2A jobs.

Among the jobs that will be most impacted are truck and bus drivers, mechanics and supervisor positions — with some rates exceeding $20 per hour. Hand-harvesters and agriculture equipment operators will continue to have the AEWR based on the Farm Labor Survey.

Because these wages will apply to every H-2A worker on a contract, and any U.S. employee in corresponding employment, employers may want to reconsider which job duties they include in a single application to avoid a higher wage applying to all job duties. Employers should discuss these options with their counsel.

For example, in the past, some employers have included hand-harvesting job duties alongside bus driver duties on the same applications. Now, some employers are filing separate petitions for these job opportunities, particularly in states where the applicable bus driver wage is higher.

FFVA and other agricultural organizations filed a motion for preliminary injunction against the DOL’s new AEWR regulation. The lawsuit alleges that the action in developing the regulation is an abuse of discretion. The legal challenge is being brought in federal district court in Tampa, and the plaintiffs include FFVA, Florida Citrus Mutual, Florida Growers Association, Franberry Farms, LLC and the National Council of Agricultural Employers.

U.S. Rep. Ralph Norman, House Agriculture Committee Chairman Glenn “G.T.” Thompson and U.S. Senators Tim Scott and Ted Budd introduced resolutions to nullify the labor department’s new wage rule. Per the Congressional Review Act, these resolutions would only need a simple majority of both chambers to head to the President’s desk for a signature.

Elsewhere in Congress, U.S. Senators Thom Tillis and Jon Ossoff introduced the bipartisan Farm Operations Support Act, legislation that would freeze the current AEWR at 2022 rates and delay the implementation of the new rule through the end of 2023.

Though FFVA is actively advocating in favor of these adverse effect wage rates actions, their passage into law is tenuous at best.

Source: FFVA

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