A federal judge has ordered the Agriculture Department to continue collecting farmworker wage data, agreeing with farm labor groups that challenged the suspension of the survey that is used to set minimum wage requirements for H-2A workers.
In issuing his injunction, U.S. District Judge Dale Drozd of the U.S. District Court for the Eastern District of California found on Wednesday that USDA’s “cursory, one-page decision provides no indication that the USDA considered the impact on farmworker wages."
“The decision means that the USDA must conduct the Farm Labor Survey and issue the annual USDA Farm Labor Report,” Farmworker Justice said in response to the ruling. The group was co-counsel in the case, representing the United Farm Workers and United Farm Workers Foundation.
“Millions of dollars in wages are at stake for more than 200,000 farmworkers,” Farmworker Justice said.
In its Sept. 30 Federal Register notice, the National Agricultural Statistics Services recognized that “wage rates have been used in the administration of the H-2A Program and for setting Adverse Effect Wage Rates,” but said “USDA has determined the public can access other data sources for the data.”
The government’s “conclusory statement that the public can access other data sources in lieu of the [Farm Labor Survey] is an about-face that the Suspension Notice fails to even acknowledge,” Drozd said.
Farm groups have long complained that reliance on the USDA survey has inflated H-2A wages and increased growers' labor costs. The H-2A wage requirements are intended to ensure that farmers can't undercut domestic workers by importing foreign labor that is cheaper.
“Absent the USDA survey, [the Department of Labor] will not have the wage data that, under the H-2A program regulations, it uses to set the ‘Adverse Effect Wage Rates’ for each state in 2021,” Farmworker Justice said. “The result would be massive wage cuts to U.S. farmworkers and foreign guestworkers at H-2A program employers in 2021. The H-2A program, which has been expanding rapidly, approved over 250,000 jobs in FY 2019 and will likely approve more in 2020.”
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The court found that USDA “violated the Administrative Procedure Act by cancelling the Farm Labor Survey and refusing to publish the annual Farm Labor Report,” FJ said, and also “violated the APA’s requirement of public rulemaking procedures before making substantive changes in agency policies and programs and the law’s prohibition against arbitrary and capricious conduct.”
The Labor Department proposed changes last year in the methodology for calculating the AEWR, but is now in the position of not having the information it needs to craft a final rule, the judge noted.
“USDA’s decision to issue its Suspension Notice has created ‘the immediate need for regulatory action’ on the part of the DOL, because it appears the survey it is required to rely upon will not, absent the granting of the pending motion, exist,” Drozd noted, citing a declaration from Brian Pasternak, the current administrator of the Office of Foreign Labor Certification, Employment and Training Administration at DOL.
“It seems apparent based upon a fair reading of the Pasternak Declaration that this was not a fully coordinated action between the DOL and defendant USDA, and that the DOL is now scrambling,” the judge said.
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