Jan 10, 2019

Fight over hike in H-2A wage rates plays out in court

On Jan. 8, the U.S . Department of Justice (DOJ) moved to stay the action brought by the National Council of Agricultural Employers (NCAE) against the Department of Labor in the District Court for the District of Columbia.

DOJ cited as reason for their proposed stay “in Light of Lapse in Appropriations” for the Department of Justice (DOL is fully funded) created by the partial government shutdown. 

The case has been assigned to Judge Timothy J. Kelly, a Trump appointee.

NCAE was denied a temporary restraining order against the DOL to prevent higher 2019 wage rates for the H-2A guest worker program,

“The National Council of Agricultural Employers will still have its day in court,” said NCAE president and CEO.

The District Court for the District of Columbia has ordered a preliminary briefing schedule due Jan. 10 for the group’s motion for a preliminary injunction against the Department of Labor’s adverse effect wage rates (AEWR) for the H-2A program for 2019.

“The court proceedings won’t stop higher wage rates for the H-2A program, at least for now,” Marsh said.

“The 2019 AEWR rates published by DOL are in effect as of today,” Marsh said  in an email Jan. 8. “However, job orders and advertising submitted should state these rates “unless rescinded by court order or other action”.

The Washington, D.C.-based NCAE earlier asked the federal district court for the District of Columbia to enjoin the U.S. Department of Labor from implementing new Adverse Effective Wage Rates for 2019.

Before ordering a briefing schedule for the case, Marsh said District of Columbia district court Judge Timothy J. Kelly heard a request from the U.S. Department of Justice to stay or suspend the action brought by NCAE against the Department of Labor “in light of lapse in appropriations.”

The court denied that request and also denied the NCAE motion for a temporary restraining order,

Marsh said a temporary restraining order is something courts very rarely issue, noting in an email that plaintiffs must show that a company will go out of business before the court can rule on a preliminary injunction.

“The impending losses from the DOL Notice taking effect are substantial and may support the entry of a preliminary injunction, but the Court concluded that they were not “imminent” enough for the Court to issue a temporary restraining order,” Marsh said.

Last night at 6 pm ET, Judge Kelly heard our Motion for Temporary Restraining Order as well as the Justice Department’s Motion for Stay in Light of Lapse in Appropriations.

The Court denied our Motion for TRO and also denied the Justice Department’s Motion for Stay without prejudice, in light of our allegations of irreparable harm in our Motion for Preliminary Injunction. A temporary restraining order, however, is something courts very rarely issue – economic harm is not enough to receive a TRO, plaintiffs must show that a company will go out of business before the court can rule on a preliminary injunction rather than suffering serious losses over the course of a season. The impending losses from the DOL Notice taking effect are substantial and may support the entry of a preliminary injunction, but the Court concluded that they were not “imminent” enough for the Court to issue a TRO.

Instead, the Court ordered a preliminary briefing schedule due tomorrow January 10, 2019 for our motion for preliminary injunction against the Department of Labor’s AEWR rates for 2019.

The 2019 AEWR rates published by DOL are in effect as of today. However, job orders and advertising submitted should state these rates “unless rescinded by court order or other action.”

Denied a temporary restraining order against the Department of Labor to prevent higher 2019 wage rates for the H-2A guest worker program, the National Council of Agricultural Employers will still have its day in court.

The District Court for the District of Columbia has ordered a preliminary briefing schedule due Jan. 10 for the group’s motion for a preliminary injunction against the Department of Labor’s adverse effect wage rates for the H-2A program for 2019.

The court proceedings won’t stop higher wage rates for the H-2A program, at least for now.

“The 2019 AEWR rates published by DOL are in effect as of today,” Michael Marsh, president and CEO of the NCAE, said in an email Jan. 8. “However, job orders and advertising submitted should state these rates “unless rescinded by court order or other action”.

The Washington, D.C.-based NCAE earlier asked the federal district court for the District of Columbia to enjoin the U.S. Department of Labor from implementing new Adverse Effective Wage Rates for 2019.

Before ordering a briefing schedule for the case, Marsh said District of Columbia district court Judge Timothy J. Kelly heard a request from the U.S. Department of Justice to stay or suspend the action brought by NCAE against the Department of Labor “in light of lapse in appropriations.”

The court denied that request and also denied the NCAE motion for a temporary restraining order,

Marsh said a temporary restraining order is something courts very rarely issue, noting in an email that plaintiffs must show that a company will go out of business before the court can rule on a preliminary injunction.

“The impending losses from the DOL Notice taking effect are substantial and may support the entry of a preliminary injunction, but the Court concluded that they were not “imminent” enough for the Court to issue a temporary restraining order,” Marsh said.

DOL  recently published the 2019 adverse effective wage rates, which dictate minimum wage rates for the H-2A program.

The 2019 adverse effect wage rate for California is $13.92 per hour, up 5.6 percent compared with $13.18 per hour last year. For Washington state, the 2019 adverse effect wage rate is $15.03 per hour, up 6.4 percent from $14.12 per hour in 2018. The 2019 wage rage for Colorado was $13.13 per hour, up 22.8 percent from just $10.69 per hour in 2018.

The overall national average adverse effect wage rate for 2019 is $12.96 per hour, up 6.2 percent compared with $12.20 per hour a year ago.

Late last year, NCAE had written a letter to the Secretaries of Agriculture and Labor asking that they not implement the 2019 adverse effect wage rate, which the group called “unsustainable.”

“The Department of Labor has not offered any data to demonstrate adverse effect and instead has simply imposed additional costs on family farmers and ranchers who have no means to recoup these costs from the marketplace putting their families’ futures in jeopardy,” Marsh said in a previous news release.