Mar 20, 2019
US District Court rules against farmers in H-2A wage lawsuit

On March 18, U. S. District Court Judge Timothy Kelly issued a memorandum of opinion in a case brought by the National Council of Agricultural Employers (NCAE) against the U. S. Department of Labor.

NCAE and Peri & Sons, a Nevada grower of fresh vegetables, brought the action following publication by the Department of the 2019 Adverse Effect Wage Rate (AEWR). The AEWR is the mandatory minimum wage that farm and ranch users of the H-2A temporary agricultural worker program must pay to all agricultural workers. The H-2A program allows farmers and ranchers facing a shortage of domestic workers to meet their labor needs by hiring foreign workers on a temporary or “seasonal” basis, after first providing evidence that U.S. workers are unavailable.

NCAE brought the action following the Department’s publication of the 2019 AEWR’s that proposed exploding mandatory minimum wage rates by as much as 23 percent in some parts of the country over the prior year.  These new minimums were set while year over year wage increases across all jobs in the entire U.S. economy, increased by just 2.8 percent.

NCAE sought a temporary restraining order asking that the wage increases mandated by DOL’s publication of the 2019 AEWR not be allowed.

NCAE explained to the Court that the Department of Labor had failed to follow the law by not determining U. S. workers were adversely affected by employers’ use of these temporary foreign workers, and that this AEWR was necessary to protect them. NCAE also noted that by failing to follow the statute, determination of the AEWR was “arbitrary and capricious” and the Department should be enjoined from implementing the unlawful wages. Further, NCAE argued that any such mandated wages be market-based.

The court, in its memorandum, concluded that NCAE’s action was time-barred and the court would enter a ruling that the action would be dismissed for lack of subject-matter jurisdiction.

H-2A an uphill battle

“We knew this case would be a challenge,” said Michael Marsh, president and CEO of NCAE. “Getting a court to enjoin the action of a government agency in its ministerial function is a difficult task. However, we clearly understand the devastating consequences to farm and ranch families of a mandatory wage rate unconstrained by market forces and we had to act.

“We are reviewing our legal options going forward in this case and I’ll be discussing those with our executive committee,” Marsh added. “H-2A users have to have relief and it would have been best if the Court had not allowed these ruinous wage rates to be forced upon them. This injustice has to be corrected.”

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