The Department of Labor (DOL) is publishing today its 2022 Adverse Effect Wage Rates (AEWR), which are the minimum an employer must pay H-2A nonimmigrant agricultural workers, and proposing some changes to how those rates are set for certain jobs.
State or collectively bargained wages that are higher supersede the AEWR. The wage rates vary by state and region, with states in the Southeast seeing the lowest minimum pay, at $11.99/hour. The highest rates are on the west coast: California $17.51; Oregon and Washington $17.41. Over the past five years, Oregon and Washington rates rose 30% and California’s went up 39%. But the highest increases over that time, at 42%, were in Nevada, Utah and Colorado, according to a Farm Bureau analysis by economist Veronica Nigh.
Historically, DOL has used data from USDA’s Farm Labor Survey (FLS) to calculate the AEWR. Challenges to that process, and a two-year AEWR freeze, got tied up in court last year, leading to a late release of the rate in 2021 and then a return to the old method.
DOL’s proposed changes would mean that while most types of jobs would still rely on FLS data, DOL would have the ability to use a different tool, the Occupational Employment and Wage Statistics survey, for jobs that are not part of the FLS or when FLS data is insufficient.
But Nigh told Agri-Pulse one concern that emerged upon initial review is that farm work often includes a variety of tasks. A person who occasionally drives a truck but most of the time is in the fields might have to be paid at the higher truck-driver rate under the new system, she said. That “will add some variation” for employers, making it harder to budget payroll for a year.
Kristi Boswell, counsel at Alston and Bird and a former USDA official in the Trump administration, said the rulemaking retains some content from a 2019 proposed rulemaking.
“The Department of Labor is looking at the work that was done in the previous administration,” she said, even as it tries to put its own stamp on policy. But she said so far, the proposal doesn’t seem to meet farm employers’ needs. “They want wage relief and they want stability,” she said.
The proposal, Boswell added, fails to address employer concerns that “these wage rates are arbitrarily high and that the Farm Labor Survey provides an instability from year to year.”
Kristi Boswell, Alston and Bird
In 2020, the H-2A program issued more than 200,000 visas for temporary non-immigrant workers, and the intent of the AEWR is to ensure that the wages paid to these international workers do not adversely impact domestic prospective workers. Boswell said while the intent is fine, she’s not convinced DOL has ever looked to see whether there is any adverse effect that needs to be prevented.
Michael Marsh, president and CEO of the National Council of Agricultural Employers, said government intervention disrupts the market’s natural ability to set wages. He pointed to the seasonality of farm work, which can make it difficult for a local resident who needs consistent income year-round, in contrast with temporary H-2A workers who return to their home part of the year. He is also concerned the rule change could force farm employers to pay significantly higher wages at a time when many already offer double the local minimum wage.
As expenses rise, Marsh said, farmers can’t just pass that on to consumers. He feels politicians and even the general public often don’t recognize that large increases in pay rates for ag workers are met by only small increases in food costs at the grocery store, which don’t necessarily trickle back to the farm.
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Plus, he said local workers are few and far between. He cited a project in Washington state where several agencies worked hard to try to recruit local workers for some of the 30,000 agricultural jobs certified for H-2A visas. He said despite time and effort from the state workforce agency, there were no domestic applicants.
Worker advocates support the Biden administration’s efforts, in particular the reversal of a Trump-era decision to freeze the AEWR for two years.
“Farmworker Justice is encouraged by the Biden Administration's proposed rule on the Adverse Effect Wage Rate, an essential wage protection for U.S. and foreign farmworkers,” Farmworker Justice attorney Andrew Walchuk said in a statement provided to Agri-Pulse. He added that the move to the DOL survey for certain categories of jobs not included in the FLS “is likely to be helpful for workers” because the affected jobs often pay more.
Most growers, Marsh said, would “much rather hire a domestic worker because it’s so much cheaper.” The H-2A application process is costly, and employers must provide housing, food, transportation and other expenses, most of which would not be provided to local employees.
One change to the program he would like to see is to allow employers to submit one application for a season even if the workers will arrive at different times. That alone could save an employer $10,000 in fees related to filing the application, he said.
Boswell agreed that staggered arrival times under one application would benefit employers. She also said the overall H-2A program is “very clunky” and could gain many efficiencies through technology, which would not require rulemaking.
Public comment on the proposed rule change is open until Jan. 31.
Steve Davies contributed to this story.
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