Challenged AEWR methodology rule vacated by federal court

A U.S. Department of Labor (DOL) Adverse Effect Wage Rate (AEWR) rule published in 2023 and challenged by agricultural organizations has been vacated.

A federal court in Louisiana on Aug. 27 vacated the DOL’s 2023 AEWR Methodology rule, published in February 2023 (.pdf). The rule based the H-2A program’s AEWRs on the Occupational Employment and Wage Statistics (OEWS) survey in addition to the Farm Labor Survey (FLS), applying permanent, non-agricultural wage data to seasonal agricultural jobs and subjecting growers to wage increases every six months.

The Florida Fruit & Vegetable Association (FFVA), the National Council of Agricultural Employers (NCAE) the Florida Growers Association and other plaintiffs filed suit in federal court in Tampa, seeking to invalidate the new OEWS methodology and the existing FLS methodology and challenging DOL’s application of AEWR.

“The AEWR Methodology rule drastically increased costs for growers and exacerbated the agricultural labor crisis,” Jamie Fussell, FFVA’s director of labor relations, said in a joint news release from those organizations and Florida Citrus Mutual. “We’re grateful to (Labor) Secretary (Lori) Chavez-DeRemer for her handling of this case and for recognizing the sense of urgency that is still needed to stabilize wages for agriculture.”

NCAE said the rule threatened the long-term sustainability of agriculture in Florida and nationwide.

“The vacating of the rule is great news, and we thank Secretary Chavez-DeRemer for recognizing the unlawful nature of the AEWR rule,” Michael Marsh, NCAE president, said in the release. “This decision brings welcome wage relief to some growers who had been subjected to these ‘special’ wage rates for routine tasks done on the farm for generations.”

Though the Louisiana ruling granted relief from the OEWS-based AEWR, the FLS-based AEWR is still in effect.

“Today’s action is welcomed by the agricultural community, but final relief from the remaining AEWR methodology is still needed to ensure growers in labor-intensive agriculture throughout the United States can remain viable,” Paul Meador of Florida Growers Association said in the release.