Posts By: Jason Resnick
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Updated H-2A AEWR Now in Effect in Most States
The Department of Labor (DOL) has released updated Adverse Effect Wage Rates (AEWRs) for “non-range” H-2A occupations, now published in the Federal Register. These rates are effective as of Dec. 16, 2024, for employers not covered by the Kansas v. U.S. Department of Labor injunction. For employers in the 17 states affected by the injunction, the updated rates will take effect on Dec. 30,…
New Protections for Victims of Violence Under AB 2499: What Employers Need to Know
California employers must prepare for significant changes under AB 2499, effective January 1, 2025. This law expands employee protections for victims of “qualifying acts of violence” (QAV) and their family members, aligning these rights with the Fair Employment and Housing Act (FEHA). Here’s a summary of key changes: Expanded Definition of "Qualifying Acts of Violence" AB 2499…
ALRB Approves AB 113 (Card Check) Regulations
On December 11, 2024, the Agricultural Labor Relations Board (ALRB) voted to approve regulations implementing AB 113, often referred to as the "card check" law. This action marks a significant step in the development of labor relations in California’s agricultural industry. The approved regulations now head to the Office of Administrative Law (OAL) for final approval, a process that must be…
OFLC Responds to Court Orders on Farmworker Protection Rule
The Department of Labor’s Office of Foreign Labor Certification (OFLC) issued guidance on November 27, 2024, regarding its response to recent court orders impacting the 2024 Farmworker Protection Final Rule. The Farmworker Protection Rule, which ostensibly aimed to improve protections for H-2A temporary agricultural workers, has faced multiple legal challenges since its publication in April…
Farm Labor Survey Previews H-2A Wage Increases for 2025
This week, the USDA released results from the Farm Labor Survey. The Farm Labor Survey (FLS) is used to calculate the Adverse Effect Wage Rate (AEWR) for field and livestock worker occupations (SOC codes: 45-2041, 45-2091, 45-2092, 45-2093, 53-7064, 45-2099). The results indicate that California employers can expect to see the AEWR increase from $19.75 to $19.97 per hour. The AEWR paid…
ALRB Reverses Course on Leasing Space from CAUSE
The California Agricultural Labor Relations Board (ALRB) reversed course and will not lease office space in Santa Maria from the Central Coast Alliance United for a Sustainable Economy (CAUSE), after Western Growers and others raised conflict of interest and transparency concerns. As reported here, the ALRB had unanimously voted at its October 30, 2024 meeting to approve establishing a new…
Appellate Court Says UFW and Wonderful Must Resume Negotiations Amid Ongoing Legal Dispute
In a recent development, California's 5th District Court of Appeal has ruled that negotiations between the United Farm Workers (UFW) and Wonderful Company must continue, forcing the two parties to return to the bargaining table. This decision follows a legal dispute in which Wonderful had previously obtained a preliminary injunction from the Kern County Superior Court, temporarily halting all…
ALRB Subcommittee Responds to Public Comments on AB 113 Regulations
On October 25, 2024, the Agricultural Labor Relations Board (ALRB) Subcommittee released its report addressing public feedback on further regulatory modifications under AB 113, focusing on card check provisions and appeal bonds. Western Growers, along with other agricultural interests, submitted comments, underscoring concerns related to transparency, fairness, and practical compliance with the…
ALRB’s New Santa Maria Office Decision Raises Impartiality Concerns
At its October 30, 2024, meeting, the California Agricultural Labor Relations Board (ALRB) approved a decision to establish a new office in Santa Maria through a sublease agreement with the Central Coast Alliance United for a Sustainable Economy (CAUSE). This late addition to the Board’s agenda was not made available for public comment, drawing concern over the Board’s procedural…
Maximizing Employer Protections Under New PAGA: “All Reasonable Steps” to Mitigate Risk
California employers have long grappled with the Private Attorneys General Act (PAGA), a law that allows employees to sue on behalf of the state for labor code violations. However, recent reforms to PAGA have introduced significant opportunities for employers to mitigate their risk and reduce penalties—if they take proactive steps to ensure compliance before receiving a Labor and Workforce…
EDD Challenges H-2A Employer on Unemployment Taxes for Housing and Meals
The Employment Development Department (EDD) is targeting an H-2A employer with a move that could have wide-reaching implications for the agricultural industry in California. In a recent preliminary hearing before an administrative law judge at the California Unemployment Insurance Appeals Board, the EDD is seeking to apply unemployment taxes to meals and housing provided to H-2A workers.…
ALRB Finalizes Regulations for AB 113
The Agricultural Labor Relations Board (ALRB) recently held a public hearing to discuss proposed regulations related to AB 113 (card check). These regulations focus on majority support petitions, unfair labor practice compliance, and appellate bonds. Over the course of several hearings held in 2024, the ALRB has reviewed public comments and made modifications to these regulations. The…
Mixed Results in Cases Challenging H-2A Wage Rule
Last week, a federal judge in Louisiana recently issued a partial injunction on the 2023 Adverse Effect Wage Rate Final Rule for sugar cane growers in that state, citing a US Supreme Court decision that overturned judicial deference to agencies' interpretation of ambiguous statutes. In the case Teche Vermilion Sugar Cane Growers Association Inc., et al. v. Julie Su, et al. (Vermilion), the…
Lawsuit Seeks to Block DOL H-2A Rule
The National Council of Agricultural Employers (NCAE), which counts Western Growers as a member, along with several agricultural groups and individual farmers, has filed a lawsuit in the U.S. District Court for the Eastern District of Kentucky, challenging the Department of Labor’s Final Rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States.”…
Federal Court Ruling Challenges NLRB Authority
A Texas judge has issued a ruling that challenges the National Labor Relations Board’s (NLRB) authority, granting an injunction to an Austin-based tech company accused of unfair labor practices. The judge found in favor of the employer’s claim that the NLRB’s administrative law judge system violates the Constitution's separation of powers doctrine. This decision cites the recent…
PAGA Reform: Welcome Relief for California Employers
Long-awaited changes to the Private Attorneys General Act (PAGA) bring much needed relief for California employers who take advantage of the opportunity. The Private Attorneys General Act of 2004 allows employees to sue their employers on behalf of the state for Labor Code violations, effectively deputizing private citizens to enforce labor laws. This unique mechanism has led to a significant…
DOL Issues Revised Transition Schedule for H-2A Job Orders Following Court Injunction
As reported here, on August 26, 2024, a preliminary injunction was issued by the U.S. District Court for the Southern District of Georgia in Kansas v. U.S. Department of Labor. The order temporarily blocks the enforcement of the Department of Labor’s Farmworker Protection Rule in 17 states and against certain named-party agricultural entities. In response, the Department of Labor’s Office…
H-2A Worker Protection Rule Blocked in 17 States; H-2A Form Changes Delayed Indefinitely
A U.S. District Judge has issued a 17-state injunction against a Labor Department regulation that would have allowed farmworkers on H-2A visas to unionize. This decision, however, is specifically limited to the states and plaintiffs involved in the suit, as the court did not find it appropriate to implement a nationwide injunction. The injunction does not apply in states Western Growers members…
Essential Updates to H-2A Forms Are Coming
The Department of Labor has introduced significant revisions to the H-2A program forms ETA-790/790A and 9142A, which will take effect on August 29, 2024. These changes aim to enhance the transparency and accountability of the H-2A application process and ensure compliance with the latest regulatory requirements. Below are the key updates H-2A employers need to know: Form ETA-790/790A…
Federal Court Blocks FTC’s Noncompete Ban
A federal judge has blocked the Federal Trade Commission's (FTC) noncompete rule, which was set to take effect on September 4, 2024. The U.S. District Court for the Northern District of Texas ruled on August 20, 2024, in Ryan, LLC v. FTC, that the rule is unlawful. The court's decision not only prevents enforcement of the rule against any company nationwide but also concludes that the FTC lacks…