USDA’s decision to stop collecting farmworker wage information using the Agricultural Labor Survey will significantly reduce income for those workers, United Farm Workers said in a lawsuit that seeks to maintain the survey.

The department’s National Agricultural Statistics Service said Sept. 30 it was discontinuing both the ALS and its quarterly Farm Labor Report, which contains wage information used to set the Adverse Effect Wage Rate for the H-2A program. “USDA has determined the public can access other data sources for the data collected in the Agricultural Labor Survey,” NASS said in its Federal Register notice. 

Plaintiffs UFW and the UFW Foundation, however, said it did so without considering “the significant effects that the decision will have on farmworkers whose wages are based in part on the wages reported in the survey,” the group’s complaint says.

USDA also did not provide a “reasoned explanation” for its decision or offer an opportunity for public notice and comment, the complaint said, alleging violations of the Administrative Procedure Act. UFW is asking the court to issue a temporary restraining order (TRO) and preliminary injunction (PI) to stop USDA from discontinuing the ALS and issuing the FLR.

UFW wants USDA “to maintain the status quo by continuing to conduct the [ALS] that had previously been scheduled to begin on or around Oct. 19, 2020, and publishing the next edition of the FLR that had been scheduled for November 2020,” according to the motion for a TRO and PI.

“How can Donald Trump justify slashing pay for all farm workers in the U.S., which means cutting wages by up to a quarter or a half in some states?” United Farm Workers President Teresa Romero said in a news release, which also said Trump would “personally benefit from this policy change by paying less to workers at his Virginia vineyards.”

“The Trump administration has corrupted a fundamental principle of the H-2A agricultural guest worker program by making it impossible for federal officials to protect American worker pay from being depressed by an influx of foreign guest workers who have fewer legal rights,” Diana Tellefson Torres, executive director of the UFW Foundation, said in the same release. “This is happening in the middle of a pandemic that is already devastating rural farmworker communities.”

USDA’s decision “will cause many hundreds of thousands of farmworkers already living on subsistence incomes to suffer significant wage cuts,” the lawsuit says. Without data from the ALS, “U.S. farmworkers and foreign guestworkers will be paid on average materially less per hour than what is currently permitted under H-2A regulations. For the typical, affected farmworker, the losses in annual income will amount to thousands or tens of thousands of dollars.”

“Where H-2A employers are permitted to offer and pay the federal minimum wage, which is $7.25 per hour, U.S. and H-2A workers at H-2A employers will receive materially lower wages if USDA does not conduct the [ALS] and publish the annual FLR, and [the Department of Labor] does not establish an AEWR,” the complaint says.

The most recent FLR, published May 28, "reported that there were 688,000 workers hired directly by farm operators during the week of April 12-18, 2020, reflecting a 9% increase from April 2019," UFW's complaint says. "These workers were paid an average gross wage of $15.07 per hour."

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“Estimates of the number of total farmworkers currently in the United States range from two to three million.” UFW’s lawsuit says. “In 2019, the federal government approved the hiring of over 250,000 H-2A foreign guestworkers, meaning agricultural workers who permanently reside outside the United States but come to the United States on nonimmigrant visas to work at a particular job for up to 10 months.”

USDA did not immediately respond to a request for comment but has previously reiterated language in the Federal Register notice that other data sources are available for wage information.

Farm groups are expecting the wage issue to be addressed in an upcoming Labor Department rule setting out new methodology for the H2-A program. That rule was proposed last year.

Michael Marsh, president and CEO of the National Council of Agricultural Employers, said he thought the lawsuit faced "tough sledding." He called its predictions of wage decreases "completely speculative," saying that the current AEWR will remain in effect till at least the beginning of next year.    

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