Date: Dec 01, 2020
Category:

The U.S. Labor Department rule changing how the agency calculates wage rates for temporary guest workers in the H-2A agricultural visa program violates the Administrative Procedure Act and must be set aside, according to a lawsuit filed in a California federal court.

The United Farm Workers and its foundation filed a complaint Monday against the department and Labor Secretary Eugene Scalia, contending the Nov. 5 regulation undermines wage protections for U.S. and temporary foreign workers under the H-2A program.

The lawsuit, filed in the U.S. District Court for the Eastern District of California at Fresno, requests a preliminary injunction to stop the measure from taking effect on Dec. 21, and a permanent injunction that voids it.

“Secretary Scalia’s decision to freeze farmworkers’ wage rates under the H-2A agricultural guestworker program for two years is an utterly arbitrary and unlawful act that inflicts grave harm to some of the most vulnerable workers in the nation,” Bruce Goldstein, president of Farmworker Justice and one of the attorneys in the lawsuit, said in a statement.

Wage Freeze Violates APA

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

Starting in 2023, and annually thereafter, the DOL will adjust 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. 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.

Representatives for DOL’s Employment and Training Administration, the sub-agency that issued the final rule, didn’t immediately respond to an emailed request for comment.

The case is assigned to U.S. District Judge Anthony Ishii.

Win for Wage Survey Lawsuit

Monday’s complaint follows an October win in court for the union.

The UFW and its foundation sued the U.S. Department of Agriculture on Oct. 14 over its decision to cancel the Farm Labor Survey.

U.S. District Judge Dale Drozd in Fresno ordered the USDA to halt its plan to stop collecting and publishing the data, saying that the department “provided no rationale” or opportunity for public comment. Drozd also found that United Farm Workers would likely prevail in its argument that the USDA didn’t consider the effect its decision would have on workers’ wages.

Cause of action: Violation of the Administrative Procedure Act

Relief: Preliminary injunction; permanent injunction to set the rule aside.

Response: Representatives for DOL didn’t immediately respond to a request for comment.

Attorneys: Mark D. Selwyn with Wilmer Cutler Pickering Hale and Dorr LLP.

*This article was repurposed from Bloomberg Law.

WG Staff Contact

Jason Resnick
Sr. Vice President & General Counsel
949-885-2253

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