Daily Labor Report®

Labor Department Accused of Allowing Low-Paid Guestworkers (1)

Aug. 23, 2018, 4:17 PMUpdated: Aug. 23, 2018, 7:21 PM

The Labor Department is letting growers get away with paying foreign agricultural workers on temporary visas less than what U.S. workers are making in the same area, a new lawsuit says.

The Aug. 23 challenge brought by the left-leaning Public Citizen Litigation Group mirrors claims by the Trump administration that employers are using temporary employment visa programs as a source of cheap labor.

The lawsuit points to five specific instances in which the DOL gave the green light for an employer to hire workers on H-2A visas, yet pay them substantially less than the prevailing wage for other workers in the same area.

The H-2A program has largely flown under the administration’s radar, with it focusing instead on the H-1B visa for skilled temporary workers as an area of potential fraud and U.S. worker displacement. In a small handful of cases, the Justice Department’s Immigrant and Employee Rights Section has investigated and settled with employers for allegedly favoring H-2A workers over U.S. workers.

Rather than suing employers for favoring temporary foreign labor, the Public Citizen lawsuit filed on behalf of four lawful permanent residents and a farmworker labor union targets the DOL’s own policies.

A DOL spokesman referred Bloomberg Law to the Justice Department when asked for comment Aug. 23. The DOJ declined to comment on the case.

Program Has Wage Requirements

Under the H-2A agricultural guestworker program, the DOL must certify that U.S. workers won’t be displaced or have their wages and working conditions undercut by the hiring of temporary foreign workers. As part of the certification process, the employer must prove that it will pay the highest of the adverse effect wage rate (AEWR), the prevailing hourly or piece rate, the agreed-upon collective bargaining wage, or the federal or state minimum wage.

In many instances, the AEWR—determined by an Agriculture Department survey—is higher than the prevailing wage, according to the complaint. But in some cases, the prevailing wage is higher, it said.

With other temporary visa programs, the DOL uses the Occupational Employment Statistics survey from its Bureau of Labor Statistics to determine the prevailing wage, the complaint said. But with the H-2A program, the agency relies on surveys conducted by state workforce agencies.

The problem, according to the lawsuit, is that the Labor Department is handing out H-2A certifications where SWAs either haven’t conducted a prevailing wage survey or have conducted a survey and made no finding. In at least five cases, the employers told the agency they would be paying much less than the prevailing wage under the OES, it said.

That practice undercuts U.S. workers’ wages and goes against the Immigration and Nationality Act and the DOL’s own regulations, the lawsuit said.

The case is Garcia v. Acosta, D.D.C., No. 1:18-cv-01968, complaint filed 8/23/18.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com