H-2A Guestworker Wages Get Overhaul in Labor Department Rule (1)

Wage rates for agricultural guestworkers employed in the US through the H-2A temporary visa program are getting an overhaul under a new rule from the Biden administration.

The rule, scheduled to be published in the Federal Register Tuesday, abandons changes to the wage methodology sought by the Trump administration that were seen as a win by employers hoping to hold down increasing costs of worker pay. It restores the use of an annual federal survey of farm employers to set the adverse effect wage rate (AEWR), a regional average wage for field and livestock workers.

Employers that hire H-2A workers must pay the higher of the prevailing wage, a collectively bargained wage, or the adverse effect wage rate (AEWR). Typically the latter is the highest wage.

The new regulation also requires employers to pay the highest applicable wage when a worker could be classified under more than one occupation, a change criticized by industry groups.

The Trump rule would have held down annual increases in farmworker pay by freezing wages, and pegged them to a different metric than what was previously used for wage calculations. That rule was blocked by a federal district court after worker advocates sued, arguing it would lead to lower minimum pay for field and livestock workers.

In public comments on the Biden administration’s proposal, trade industry groups had argued that paying workers the highest applicable wage in all cases would be punitive and potentially damaging to small farmers.

The Biden administration in October also published broad regulations that update the prevailing wage calculations and required minimum working conditions for H-2A visa holders. A federal district court judge earlier this month denied a request by the National Council of Agricultural Employers to block those regulations from taking effect.

Michael Marsh, the group’s president and CEO, warned that the adverse effect wage rate rule would lead to the US losing food production across its borders. NCAE is working with legal counsel to decide how it will respond to the new regulations, he said by email.