Judge strikes down most of Trump administration’s rewrite of farmworker wage rules

A federal judge ruled the Labor Department’s new formula for setting temporary farmworker wages was arbitrary and skipped required public input.(CN) — A federal judge struck down most of the Trump administration’s rewrite of farmworker wage rules Wednesday, ruling it pushed through changes that would have lowered the minimum wages required for the majority of temporary foreign farmworkers without adequately explaining why.U.S. District Judge Kirk Sherriff held the Labor Department’s new wage formula unlawful, finding three of four challenged components arbitrary and capricious and ruling the agency lacked good cause to skip the public notice-and-comment process for most of the changes.“The IFR failed to reasonably consider whether its methodology could fulfill DOL’s statutory duty,” the Joe Biden appointee wrote in his opinion.Federal law requires the Labor Department to ensure hiring temporary foreign farmworkers under H-2A visas doesn’t drag down wages for U.S. farmworkers doing the same jobs.For decades, the department set each region’s minimum required wage, called the Adverse Effect Wage Rate, at the average wage for all farmworkers there. Last October, citing the discontinuation of the federal survey it had long relied on, the department issued an emergency rule overhauling how that wage floor gets calculated without going through the normal public-comment process.United Farm Workers and a group of individual farmworkers sued, arguing the new formula was designed to lower wages rather than accurately track the market.Sherriff agreed switching data sources on an emergency basis was justified since the old survey had genuinely been discontinued and the department faced a year-end deadline to publish new wage rates. But he found the rest of the rule went further than that problem required.The rule split farmworkers into two skill tiers and set the lower tier’s wage floor at the 17th percentile of all wages rather than the average, a tier the department’s own rule predicts will cover 92% of H-2A workers.Sherriff wrote the department borrowed the 17th-percentile figure from the H-1B visa program’s four-tier system, where only about 60% of workers fall into the bottom two tiers combined, without explaining why it made sense for an H-2A system where the bottom tier covers nearly everyone.“DOL cannot set the bottom tier AEWR to the 17th wage percentile simply because the H-1B program … uses that percentile for the bottom tier of its four-tier system,” Sherriff wrote.He was skeptical of a new housing adjustment that effectively reduced workers’ wages by deducting the value of employer-provided housing from the AEWR, even though federal regulations still require growers to provide that housing for free.Because the deduction assumes a 40-hour workweek, workers who log more hours, which the department’s own data shows is common, can end up paying more for housing than it is worth.Sherriff also rejected a rule requiring an entire job to be classified under whichever duty consumes more than half a worker’s time, even when that means a higher-paying task, such as driving a heavy truck, gets paid at the lower rate if the worker spends less than half the time performing it.The department, Sherriff noted, never considered a simpler alternative: paying workers different rates for the different kinds of work they do.The one challenged component that survived the court’s substantive review was the choice to switch to a different government wage survey after the old one was discontinued. Sherriff found the urgency justified moving quickly on that problem, even without public comment.Rather than immediately vacating the rule, which he said could leave the farm labor market without applicable AEWRs and cause disruption, Sherriff ordered the department back to the drawing board.The Labor Department must now produce a new methodology for calculating H-2A wages, while the parties have two weeks to report on the agency’s initial steps and anticipated timeline.Sherriff left open the possibility that farmworkers could eventually receive back pay for the period between the order and the issuance of new AEWRs. But he deferred that decision until the new wage rates exist for comparison.United Farm Workers and the Labor Department Representatives did not immediately respond to a request for comment.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads