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U.S. Department of Labor Implements New H-2A AEWR Rule

Bryan Little, Farm Employers Labor Service

November 4, 2020

The U.S. Department of Labor (“DOL”) published a new rule on November 2, 2020 creating a new methodology for calculation of the H-2A temporary agricultural worker visa program’s Adverse Effect Wage Rate (“AEWR”), which often serves as the minimum wage standard for employers employing temporary workers under the terms of the visa program. Employers employing H-2A workers are required to pay the highest of the AEWR, a prevailing wage (if available), or the applicable statutory minimum wage.

U.S. Secretary of Agriculture Sonny Perdue said of the publication of the new wage rule, “This rule shows once again President Trump’s commitment to America’s farmers by delivering lower costs when they need to most.  Over the past several years farm wages have increased at a higher pace than other industries, which is why the DOL rule could not come at a better time.  This is an example of good government that will ensure greater stability for farmers and help them make long term business decisions rather than face uncertainty year after year.”

The new DOL rule freezes the AEWR at the average hourly rate reported for field and livestock workers reported by the U.S. Department of Agriculture’s Farm Labor Survey in November 2019, after USDA announced suspension of the Farm Labor Survey after 2019.  Farm workers advocacy groups have sought the intervention of federal courts to revive the Farm Labor Survey and succeeded in convincing the U.S. District Court for the  Eastern District of California to enjoin USDA’s suspension of the survey.  Beginning in 2023, DOL will annually adjust the AEWRs based on the percentage change in the Bureau of Labor Statics’ (BLS) Employment Cost Index for wages and salaries in the preceding 12-month period.    

You can U.S. Department of Labor’s Frequently Asked Questions on the new rule here; you can review the final rule here.

California employed the fourth largest total of H-2A workers of any U.S. state in 2019 (23,321), the H-2A program constitutes a relatively small share of California’s agricultural workforce, which by estimates from the California Employment Development Department is more than 650,000 in peak summer and fall agricultural employment months.  However, the inflationary effect of the Adverse Effect Wage Rate required by the growing H-2A program probably had an inflationary impact on agricultural employee employment costs across the board, so U.S. DOL’s revision of it’s AEWR methodology is welcome news.