Farms may be required to pay higher wages to some foreign workers under changes the Labor Department has finalized in the way that H-2A minimum pay rates are calculated.

Under a rule that will be published in the Federal Register on Tuesday, the department will calculate the H-2A wage rates for field workers based on USDA’s Farm Labor Survey of farmworker wages.

However, H-2A wage rates for some occupations, including truck drivers as well as managers and supervisors on farms, will be calculated based on a broader wage survey conducted by the Bureau of Labor Statistics. The department determined the BLS survey better reflected the prevailing wages paid for those occupations.

For positions that cover more than one job classification, the department will base the H-2A rate on the highest wage of the applicable occupation. 

Farmers are required to pay H-2A workers at least as much as the “adverse effect wage rate” set by the department each year. The wage regulations are intended to prevent the importation of H-2A workers from depressing local wages. 

The Labor Department says in the 134-page rule that the new “methodology strikes a reasonable balance between the statute’s competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages and working conditions of workers in the United States similarly employed.”

The department estimated employers would pay an extra $38 million a year because of the rule. 

The United Farm Workers and UFW Foundation said in a press release Tuesday that the new rule would "protect the wages and job opportunities of U.S.-based agricultural workers and ensure the fair treatment of H-2A Guest Workers."

But in a statement to Agri-Pulse, Michael Marsh, president and CEO of the National Council of Agricultural Employers, said the rule would be “disastrous for America and our national security. There can be little doubt that if this rule is implemented as planned, the flight of food production to destinations outside our borders will accelerate and contribute to the U.S. becoming a net importer of food.”

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His group argues that the USDA survey isn’t an accurate way of determining industry wages and that switching to the BLS data for some occupations only compounds the problem for farms. He said NCAE has unsuccessfully petitioned the department for a hearing on the issue. 

“NCAE is working with legal counsel to determine how to best protect America's family farm and ranch operations from this rule so blatantly unhinged from marketplace realities and commonsense. Farming and ranching is not sustainable if the agricultural employer cannot make a dollar every now and then,” he said. 

John Walt Boatright, director of government affairs for the American Farm Bureau Federation, said the department "largely ignored industry input in favor of a new calculus. Labor already accounts for nearly 40% of total production costs on some farms, and the final rule will certainly continue to raise costs for farm families."

The Labor Department proposed the modifications to wage rate calculations in December 2021 after scrapping an earlier proposal by the Trump administration that was blocked in the courts. The Trump proposal included a two-year freeze on wage rates. 

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