Department of Labor finalizes H-2A wage rule

The Department of Labor (DOL) published its final rule on Feb. 28 detailing the revised methodology for determining the Adverse Effect Wage Rate (AEWR) for H-2A workers any any U.S. workers in "corresponding employment."

The new rule is scheduled to take effect on March 30, 2023. H-2A applications for temporary labor certification/job orders filed after this date will be subject to the new rule.

DOL has determined the rule is necessary to ensure that the employment of H-2A foreign workers will not have an adverse effect on the wages of similarly employed agricultural workers in the U.S. This would include U.S. workers that perform any duties in common with H-2A foreign workers.

For the vast majority of H-2A job opportunities (including greenhouse and nursery crop production), the rule does not change the methodology that has been in place since 1987, which uses the annual average gross hourly wage for field and livestock workers (combined) for the state or region, as reported by the U.S. Department of Agriculture’s Farm Labor Survey (FLS), whenever such wage data is available. The methodology results in a single statewide hourly AEWR, adjusted annually, for all H-2A job opportunities in six Standard Occupational Classification (SOC) codes within the field and livestock worker (combined) category. AEWRs for these job classifications will continue to be published annually in December, and take effect around January 1.

However, DOL’s revised methodology establishes new wage obligations for “specialized” occupational duties such as truck driving/hauling, on-farm construction, and first line supervisors.

In its statement announcing the final rule, DOL says that the new methodology will result in AEWRs that better protect against adverse effect on the wages of workers in the United States similarly employed, while providing stability and predictability for employers in complying with their wage obligations.

AmericanHort and collaborators are evaluating options, as noted in its Impact Washington advocacy newsletter. AmericanHort is part of the Agriculture Workforce Coalition, a group of more than 70 organizations representing the diverse needs of agricultural employers across the country. AWC issued the following statement about the final rule:

“The Agriculture Workforce Coalition (AWC) is deeply concerned about the Department of Labor’s publication of the new methodology to calculate the Adverse Effect Wage Rate (AEWR) for the H-2A program. The new calculation dramatically increases costs for producers utilizing the program and will place an undue burden on family farms which are already facing a multitude of challenges, including the impact of high input costs, foreign competition, market volatility, and adverse weather. It will make it difficult for farmers to remain competitive and will serve only to further increase costs for domestically produced agricultural products.

“The AWC urges Congress to act without delay on ag workforce reform legislation. Farmers are committed to paying their employees a fair wage. The way the wage has and continues to be set is flawed and needs to be revised through provisions to reform the H-2A guest worker program, including the wage calculation.”

Read the final rule here.