The U.S. Department has published another FAQ concerning the final rule promulgating regulations establishing a new methodology for determining hourly Adverse Effect Wage Rates (AEWRs) for non-range occupations (i.e., all occupations other than herding and production of livestock on the range) for temporary labor certifications in the H-2A program (the 2023 AEWR Final Rule). The final rule went into effect on March 30, 2023. Below is a summary of the FAQ.
The determination of whether an FLS-based AEWR or an Occupational Employment and Wage Statistics (OEWS)-based AEWR applies to a job opportunity depends on the Standard Occupational Classification (SOC) code assigned to the job. The State Workforce Agency (SWA) and Certifying Officer (CO) review the job opportunity and compare it to SOC code descriptions and other information on the Department of Labor’s Occupational Information Network (O*NET) website. Additional information provided by the employer may also influence the determination of the appropriate SOC code.
Most H-2A job opportunities fall within the SOC codes associated with field and livestock workers (the “Big Six”) and are subject to the FLS-based AEWR. These SOC codes include tasks such as planting, tending, harvesting field crops, tending livestock, and operating farm machinery. Job opportunities classified under SOC codes outside the “Big Six” are subject to an OEWS-based AEWR. Job opportunities that span multiple SOC codes may be subject to the higher AEWR if the duties fall within both FLS-based and OEWS-based categories.
When job opportunities involve driving duties, the SWA and CO consider factors such as the type of equipment, location, and job requirements to determine the appropriate SOC code and AEWR. Depending on the specific details of the job, driving duties may fall under SOC codes subject to either FLS-based or OEWS-based AEWR.
In cases where a job opportunity involves a mix of duties subject to different AEWRs, the higher AEWR will apply to all hours worked by H-2A workers, regardless of the specific tasks performed. Non-H-2A workers engaged in corresponding employment must also be paid at least the applicable AEWR for the time spent in corresponding work.
If a job order includes both harvesting and driving duties, the AEWR determination depends on the structure of the job order(s) and the actual work performed. Various scenarios with driving duties are provided as examples, including filing separate job orders for different duties, assigning the higher AEWR if truck driving duties fall under specific SOC codes, and considering corresponding employment wages for non-H-2A workers.