Mar 1, 2023

DOL issues H-2A wage rule, ag groups voice displeasure

The Department of Labor issued its new rule for determining wages for ag workers in the H-2A temporary visa program, and industry groups were quick to voice their displeasure with the new rule.

The National Council of Agricultural Employers (NCAE) said it has a “grave concern” with the rule, published in the Federal Register on Feb. 28.

“The Department of Labor’s new wage rule is a disaster for American consumers and the farm and ranch families who toil every day to deliver bounty harvested from their legacy operations,” Michael Marsh, president and CEO of the NCAE, said in a news release.

The new regulation continues the Department of Labor’s (DOL) “historic misuse” of the U.S. Department of Agriculture’s Farm Labor Survey to set H-2A wages, according to NCAE. By doing so, the wages are disconnected from the market for agricultural labor in the U.S. The new rule also adds wage rates to the program that are similarly disconnected from agriculture to compensate some workers for routine on-farm chores, according to the NCAE.

Marsh said the net effect of the rule will push more of America’s food production offshore to foreign competition. More than 60% of the fresh fruit and more than 35% of the fresh vegetables consumed in the U.S. are imported, according to the NCAE.

The NCAE reported that the USDA has acknowledged its Farm Labor Survey was not intended to set wage rates for any ag workers or programs. Known as the Adverse Effect Wage Rate (AEWR), it sets regional minimum pay rates in the H-2A program.

Although growers dislike annual hikes in the AEWR, sometimes double-digit increases, more and more are using H-2A because it basically guarantees a work force that is legal.

The Georgia Fruit & Vegetable Growers Association said the new labor rates included in the H-2A rules compound the damages introduced by the proposal. The group also is seeking transparency on how the DOL used data when setting the new wage structure that began Jan. 1, with an average increase of 14%.

“With the issuance of these rules, we will work with our partners at the National Council of Agricultural Employers to pursue all tools at our disposal to protect the viability of the H-2A program as well as to protect our members from exorbitant increases in wage rates that are completely disconnected from real labor market rates in our rural communities,”

The GFVGA is evaluating the proposed changes and considering options to “fight for changes that ensure that our growers have access to a reliable and documented workforce,” according to a statement from the association.

The International Fresh Produce Association (IFPA) issued a statement that said the rule attempts to revise the wages based on employment duties, without changing the “flawed formula” that is used to determine the AEWR.

“The fresh produce and floral industry already faces enough challenges and the publication of today’s AEWR rule is just one more burden our industry can simply not bear,” IFPA CEO Cathy Burns said in the statement. “The H-2A program is unaffordable, ineffective and out of date, and these program changes make it even more difficult for our members to find the workers they need. This is why Congress must act to pass agricultural immigration reform now. America’s agricultural producers simply cannot wait any longer.”

While efforts to revise the program seek to protect American workers, it has only succeeded in hurting the businesses that employ them, according to IFPA. American agricultural employers have struggled to find the workers they need.

The NCAE has “repeatedly petitioned” the DOL to schedule hearings on how the H-2A wages are set, according to the news release.

“The Farm Labor Survey has been conducted for more than 80 years, using basically the same survey methods. It was not designed to be used as a source of wage rates for a guest worker program,” the USDA said, according to the NCAE. “Rather, it provides an accurate count of the numbers of persons employed in agriculture and the average wage rate across all skill levels and occupations.”

Marsh said the DOL is required by law to set wage rates under the H-2A Program that will not adversely affect the wages and working conditions of domestic workers similarly employed.

“This rule seeks to do that by throwing U.S. farm and ranch families under the bus,” Marsh said in the release.