The minimum wage that farms are required to pay workers with H-2A visas - those who come from other countries for temporary agricultural work - continues   to vex both producer and farmworker representatives, both of whom challenge the method of calculation for fixing wage rates that they consider ither too low or too high.

Some 120 House members are the latest to call attention to the issue by asking the House Appropriations Subcommittee on Labor, Health and Human Services, and Education to freeze the wage rates at January 2023 levels in the panel's fiscal 2025 spending bill. 

The national average of the Adverse Effect Wage Rate (AEWR), which Labor calculates to be the floor for farmworker wages, “has already more than doubled over the past two decades, making agricultural guest labor unaffordable for farm employers and resulting in higher consumer costs,” the lawmakers, mostly Republicans but also some Democrats, said in the letter to subcommittee Chairman Robert Aderholt, R-Ala., and Ranking Member Rosa DeLauro, D-Conn.

The subcommittee is scheduled to consider the FY25 Labor-HHS bill June 27.

A similar letter was spearheaded by Sens. Kevin Cramer, R-N.D., and Mike Crapo, R-Idaho. They and 14 other senators asked Majority Leader Chuck Schumer, D-N.Y., and Minority Leader Mitch McConnell, R-Ky., to include a wage freeze “in the earliest possible legislative vehicle.”

Nearly half of states have minimum wage rates set between $17 and $19 an hour, the lawmakers said, compared to competitors in in Canada, where producers “pay closer to $11 per hour for fieldworkers” and in Mexico, where the prevailing rate is around $1.50 per hour.

“This uneven playing field greatly disadvantages our domestic producers,” they said.

Michael MarshMichael Marsh, NCAE

Michael Marsh, CEO of the National Council of Agricultural Employers, cites examples of NCAE members who are planning to move their operations to other countries.

A cherry grower in Washington state, for example, plans to move to British Columbia, where the producer can pay $12.56 instead of $19.25 hourly. “And he doesn't have to pay [for] the housing” as well as three meals a day for workers, Marsh said.

A tomato grower in California is moving to Mexico where wages are around 300 pesos a day, or about $1.50 an hour, Marsh said. In California, he’s paying $19.75 an hour.

For NCAE, a lot of the problem comes down to the way wages are calculated. The group has petitioned Acting Labor Secretary Julie Su to change the methodology.

NCAE argues that USDA’s Farm Labor Survey was never meant to track wages but simply to count workers.

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“The FLS was designed to count the number of workers in agriculture rather than establish a wage rate completely disconnected from agricultural wages paid in the market for a temporary work program,” NCAE said in a letter to Su in December, renewing the group’s call for an examination of the methodology.

“There would have to have a rule change in order to stop using the FLS,” Marsh said, noting that when the Trump administration tried to stop using it, the United Farm Workers prevailed in a suit to keep it in place.

Without FLS, the Labor Department would default to using the Occupational Employment and Wage Statistics from the Bureau of Labor Statistics. Marsh said NCAE is looking into how wages might be affected if OEWS were used.

Labor’s latest AEWR rule uses some non-farm OEWS wage data “for typical farming and ranching activities that have existed in global agriculture for generations," NCAE's letter said. "Of course, these non-farm wage rates now find their way into the FLS survey results that USDA uses to count the number of workers, further spiking the misused wages by the department even higher.”

At a recent meeting with Su and Secretary of Agriculture Tom Vilsack with farm group leaders, Marsh said he repeated NCAE’s call for Labor to hold a hearing on the AEWR methodology.

“We've got to find a better way,” he said.

One of the main problems NCAE has with the Farm Labor Survey is its incorporation of different types of compensation into wages. “So if you have a piece rate, incentive payments that go in there, year-end bonuses, birthday bonuses, Christmas bonuses – that all goes into that calculation. And so you may start out at … 15 bucks an hour. But when you add everything else in there, it goes up to $20.”

Legislation has been introduced in both House of Congress to freeze farmworker wages but Marsh acknowledges that chances of passage are slim.

The Farm Workforce Modernization Act, which passed a Democratic-controlled House in successive Congresses before dying in the Senate, included a temporary freeze on the H-2A wage rate. The bill faced GOP opposition for unrelated reasons and has not been considered in the House since Republicans reclaimed control last year. 

Meanwhile, in Washington state, Familias Unidas Por La Justicia is seeking an injunction in federal court in Seattle to stop the Labor Department from using the methodology it adopted in 2022 to determine the “prevailing wage” for H-2A workers.

Local workers who were often getting paid more than $20 an hour under use of a “piece rate,” which is calculated using the amount of produce a worker harvests, are now making much less, according to Columbia Legal Services, representing FUJ.

The group says DOL has relied on an incomplete data set from the state, which has resulted in “no findings” for “some of the largest crops in Washington state, such as Granny Smith, Red Delicious and Fuji apples. Where there are ‘no findings’ the wage requirement defaults to the minimum hourly wage for H-2A.” 

“State legislation to improve parts of this system passed earlier this year, requiring the survey to ask farm workers directly (not just their employers) what they had they been paid, but DOL has not published new findings and continues to use data from 2022,” Columbia Legal Services said.

For nearly a year, “Washington state workers have been without prevailing wage protections … and DOL has given no indication when, if ever, it will publish prevailing wage findings,” the lawsuit says.

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