Court Blocks Trump’s New Guest Worker Wage Rate Rule

The Labor Department must set aside its new regulation changing how it calculates wage rates for temporary agricultural guest workers and must meet with the United Farm Workers to establish deadlines and set a commonly used rate for the start of 2021, a federal court in California said.

The UFW is likely to prevail on all its claims because the agency didn’t adequately analyze the change, which includes freezing wage rates for two years, Judge Dale A. Drozd said Wednesday for the U.S. District Court for the Eastern District of California. He granted the union’s request for a preliminary injunction.

Because the rule “predominantly benefits higher-skilled workers’ wages” and slightly lowers field and livestock workers’ wages, the department had to justify it, he said. But DOL didn’t even acknowledge changing its methodology “by intentionally deviating from the most accurate data on field and livestock worker market wages,” Drozd said.

The UFW alleges the Nov. 5 regulation undermines wage protections for U.S. and temporary foreign workers under the H-2A program.

Historically, H-2A pay has been based on data compiled through the Department of Agriculture’s Farm Labor Survey, published most recently in November 2019 and used for 2020 rates. Under the final rule, wages based on the survey would have frozen for 2021 and 2022.

Starting in 2023, and annually thereafter, the DOL would have adjusted the H-2A program’s “adverse effect wage rates” by the percentage change in the Bureau of Labor Statistics’ Employment Cost Index for wages and salaries for the preceding 12-month period for the majority of jobs under the H-2A program.

According to the complaint, the new regulation violates the federal Administrative Procedure Act in several ways. The UFW alleges the rule fails to comply with the H-2A prohibition against adverse effects to farmworkers’ wages, uses wage mechanisms that bear no relation to the farm labor market, and failed to give the public proper notice and comment opportunity on the wage freeze.

Drozd told the parties to confer “as to the setting of new deadlines in light of this order as well as the framework to apply during the brief period of early 2021 before the new 2021" rates are announced.

Farmworker Justice and Wilmer Cutler Pickering Hale & Dorr LLP represented the UFW. The Department of Justice represented the DOL.

The case is United Farm Workers v. Dep’t of Labor, E.D. Cal., No. 1:20-cv-01690, preliminary injunction 12/23/20.