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December 2, 2021

DOL Proposes New Rules on AEWR Methodology

On December 1, 2021, the U.S. Department of Labor (DOL) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register designed  to modify the methodology used to determine the hourly Adverse Effect Wage Rates for the H-2A program. The proposed rule, entitled “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A,” is the DOL’s second attempt in a year to revise the existing structure of relying exclusively on the Farm Labor Survey (FLS) for purposes of determining the AEWRs.

For field and livestock worker occupations, which represent the vast majority of agricultural jobs, the proposed rule continues to use the average annual hourly wage for field and livestock workers (combined) (i.e., crop workers, livestock workers, graders and sorters, equipment operators) for the state or region, as reported by the U.S. Department of Agriculture’s Farm Labor Survey. For all other agricultural jobs, which are not adequately represented or reported by the current FLS data (e.g., on-farm construction, supervisors, certain hauling/truck driving), the department proposes to set the AEWRs using the statewide or national average annual hourly wages for the occupational classification reported by the Bureau of Labor Statistics Occupational Employment and Wage Statistics Survey program. Where the job opportunity covers more than one occupational classification, the department proposes to set the AEWRs based on the highest wage for the applicable occupations.

The proposed rule essentially adopts the wage setting methodology that was proposed by the Trump Administration’s DOL, while eliminating the popular provision that would have frozen H-2A wages at 2020 rates through 2022. That provision was blocked by a federal judge last December.

For questions about H-2A or Western Growers H-2A labor services, please contact Jason Resnick at [email protected].