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January 19, 2021

2021 H-2A AEWR Expected by Feb. 25; May Require Backpay Obligation

As reported here, on December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in United Farm Workers. v. DOL enjoining the Department of Labor from implementing its Final Rule modifying the Adverse Effect Wage Rate (AEWR) methodology for setting wages under the H-2A program.

On January 12, 2021, the court also ordered DOL to publish the AEWR for 2021 in the Federal Register on or before February 25, 2021, using the methodology set forth in the prior 2010 rule, and to make those AEWRs effective upon publication. Additionally, the court ordered the Department to notify all state workforce agencies (SWAs), employers, and the general public that the AEWRs in effect on December 20, 2020, will remain in effect during the interim period until the Department publishes 2021 AEWRs in the Federal Register, which it did on January 15.

Additionally, the court said it will later decide whether an award of backpay is warranted based on the difference, if any, between the 2020 AEWRs and the final 2021 AEWRs. Accordingly, the court ordered DOL to provide notice to all employers who submit job orders and applications under the H-2A program between December 21, 2020, and the publication of 2021 AEWRs in the Federal Register, that affected H-2A workers may have a potential claim for backpay.

In its announcement about the court’s order, DOL reminded employers to record the names and permanent home addresses of all H-2A workers who may later be entitled to backpay and make reasonable efforts to ensure that such information for each worker remains current. DOL will provide a further notice when the court issues a ruling regarding potential backpay.