A federal court has struck down a key method for determining farmworker wages in the H-2A guest worker program, in a case brought by Louisiana sugar cane growers.
In a final judgment issued Tuesday, U.S. District Judge Robert Summerhays in Louisiana vacated a 2023 Adverse Effect Wage Rate rule issued by the Biden-era Labor Department that required some workers be paid wages determined by the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics survey, not the USDA’s Farm Labor Survey.
That resulted, farm groups said, in workers being paid higher wages for jobs performed on the farm, such as driving a truck or fixing a fence, that previously had simply been considered normal agricultural work.
The judge had issued an injunction last year vacating the rule but granted relief only to the Louisiana sugar cane companies who filed the lawsuit. The final judgment applies to all H-2A employers.
The American Sugar Cane League had sued on behalf of its members, which make up nearly all of the state’s sugar industry, because the 2023 rule “reclassified farm workers into categories that do not reflect the reality of farm operations,” the league said in a news release celebrating what it called a “settlement” with the Labor Department.
The government did not object to the league’s filing of a motion for final judgment. In that motion, the league said the department “has signaled its intentions to engage in new rulemaking around its H-2A Adverse Effect Wage Rate (AEWR) methodology,” which farm groups have said has led to a steady increase in wages for H-2A workers.
“Guest worker programs are critical to Louisiana’s sugarcane industry,” said Jim Simon, general manager of the league. “The workers we are fortunate to welcome back each year have become part of farm families here, and the income they earn provides for a significantly better standard of living in their home countries.
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“This settlement represents a huge win not only for Louisiana cane farmers and millers but for every farmer in America,” he said “The Department of Labor’s decision to vacate the 2023 rule eliminates an onerous burden that threatened the sustainability of farms nationwide.”
Michael Marsh, president and CEO of the National Council of Agricultural Employers, called the ruling a positive one that would provide financial relief to growers.
“This decision brings welcome wage relief to some growers who had been subjected to these ‘special’ wage rates for routine tasks done on the farm for generations," Marsh said in a release.
In an interview, Marsh said an analysis conducted for NCAE showed that OEWS-derived wages would have cost growers $1.4 billion over the next 10 years – more than three times the $375 million estimated by the Labor Department.
But Marsh said “there's work left to do.” His group will continue to press its case in a lawsuit in Florida challenging continued use of the Farm Labor Survey to determine on-farm wages in the H-2A program. OEWS wages make up about 8% of the wages paid to H-2A worklers, he said, with the rest determined by the FLS.
The ruling also will benefit H-2A employers because the Farm Labor Survey will no longer be factoring in the OEWS wages when determining the AEWR.
“It’s a modest help, but it is a help,” Marsh said.
American Farm Bureau Federation President Zippy Duvall said in a statement that "Farm Bureau is pleased that the Department of Labor and a federal judge recognized that elements of the 2023 labor rule created an unfair wage structure that forced farmers to pay employees for jobs they may not usually perform. Farmers care about the men and women who choose to work on their farms, and they support paying good wages for their employees, but the rule did not align compensation with work performed."
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