Wage Rules’ Effect on Illegal Farm Labor Goes Before Fourth Cir.

A challenge to US Labor Department pay regulations for workers on H-2A temporary agricultural visas could hinge on whether a federal appeals court buys arguments that the agency didn’t sufficiently consider the rules’ impact on employers’ use of undocumented workers.

Under the Biden administration, the DOL has issued a spate of regulations governing the H-2A program, which US farms have come to increasingly rely on to supplement labor for harvesting fruit and vegetables as they struggle to find adequate American workers. Those efforts have repeatedly ended up in court, with the agency defending regulations on mandated wages, workplace and housing conditions, and organizing protections for foreign farmworkers.

Agriculture employers now are claiming wage increases mandated for farmworkers on seasonal visas will push many farmers to use illegal labor in arguments before the US Court of Appeals for the Fourth Circuit on Wednesday.

Adverse effect wage rate standards issued last year have generated ire from farm employers over increased labor costs, although lawsuits in court have mostly run into roadblocks so far. An industry group’s appeal argues that DOL regulations have ignored the core purpose of the 1986 statute creating the H-2A program.

By making H-2A visas unaffordable, “it incentivizes the employment of undocumented immigrants, thus increasing illegal immigration,” the group said in a brief to the Fourth Circuit.

Unauthorized Labor

The adverse effect wage rate—or AEWR—governs the pay mandated for most of the more than 300,000 workers on H-2A visas in the US. New regulations finalized by the Biden administration last year opted to use different survey data to calculate minimum pay for some field and livestock workers. It also required employers to pay the highest possible wage if a worker could be classified under multiple occupations.

USA Farm Labor, an agency that helps agricultural employers secure H-2A visas, sued the DOL over the rule last year but failed to secure a preliminary injunction. A Fourth Circuit panel in Richmond will hear an appeal on the injunction Wednesday although summary judgment motions are already before the district court.

The DOL projected that 98% of H-2A workers would be unaffected by the new wage methodology, a conclusion that industry groups say isn’t supported by data. The claims over the the Immigration Reform and Control Act of 1986, or IRCA, drew pushback in particular though from worker advocates in court briefs.

The agency was under absolutely no obligation to consider illegal immigration as part of putting together the new AEWR methodology, said Michael Kirkpatrick, an attorney at Public Citizen Litigation Group who filed an amicus brief in the case on behalf of labor advocates and two agricultural workers. That statute tasked what was then the Immigration and Naturalization Service, not the DOL, with tackling illegal immigration, he said.

By adopting new survey data for some specialty farm jobs—like construction, truck driving, or supervisor roles—the agency was actually closing a loophole that allowed farm employers to use H-2A labor more cheaply than American workers, Kirkpatrick said.

“DOL’s mandate is to ensure the employment of H-2A workers will not have an adverse effect on US workers similarly employed,” he said. “That’s what they’re doing.”

Some employers could violate the law by opting to pay less for undocumented workers, but industry groups have offered no evidence or way to measure that, Kirkpatrick said.

Multiple Challenges

Even a significant increase in pay, however, would still leave farmers struggling to find enough US workers, Madeline Zavodny, an economist at the University of North Florida, said in exhibits filed by the plaintiffs. That makes unauthorized workers the most viable alternative if the temporary visas become too expensive, she wrote.

The Fourth Circuit arguments will take place as two other challenges unfold in district courts. A Western District of Louisiana judge last week granted a partial injunction on the rule for sugar cane growers in the state.

Judge Robert Summerhays found that the US Supreme Court’s ruling overturning Chevron deference undermined the Labor Department’s defense of the wage regulations. But USA Farm Labor offered no arguments against the rule based on the justices’ decision in Loper Bright Enterprises v. Raimondo, which threw out a requirement for judicial deference to an agency’s reasonable interpretations of unclear laws.

A third challenge from the National Council of Agricultural Employers in the Middle District of Florida was also unsuccessful in seeking an injunction. But Michael Marsh, the group’s president and CEO, said he hoped the ruling in Louisiana would be the “first of many dominoes to fall.”

“We’ve got to get some relief for farmers and ranchers from these regulations,” he said. “On the wage rate, they’re completely disconnected from the marketplace.”

The plaintiffs are represented by Cranfill Sumner LLP, Hall Law Office PLLC, and Clark Hill PLC. The DOL is represented by the Department of Justice.

The case is USA Farm Labor v. Su, 4th Cir., No. 23-02108, oral arguments scheduled 9/25/24.