Waynesville’s USA Farm Labor Inc. (USAFL), one of the top three agencies assisting agriculture employers with the H-2A visa program, is suing the Department of Labor demanding they pause a rule change that could cost the company hundreds of thousands of dollars per year.

The suit calls for injunctive relief from the department’s rule change that would change the way that the wages are determined for both U.S. workers and foreign H-2A workers. USAFL filed a motion for an expedited hearing last Thursday on the decision of whether or not to pause the rule change. 

Since the H-2A program’s inception in the 1980s, the goal of it has always been to allow farm owners to have enough workers to run their farms, while also not depressing the job opportunities and wages of American-born workers. This is why H-2A visas allow U.S. employers to bring foreign nationals into the United States to fill temporary agricultural jobs, as long as certain regulations are met like first seeking to employ U.S. citizens and confirming that H-2 workers will not depress wages. 

The Department of Labor also protects the wages of American agricultural workers through the adverse effect wage rate (AEWR), a minimum wage that employers use to pay all their workers. Historically, the labor department has set its AEWR based on the Farm Labor Survey, administered by the U.S. Department of Agriculture which looked exclusively at agricultural work, preventing wages from being depressed by foreign workers. 

The department’s rule change would have abandoned this seven-decade policy of setting agricultural wages based on a survey, and instead use nonagricultural labor market survey data from the Bureau of Labor Statistics for all but the six most common agricultural job positions.

USAFL’s Lawsuit

In the lawsuit, USAFL Inc. states that the policy change “will cause thousands of farms to suffer grievous and irreparable losses through no fault of their own.” In their motion for an expedited hearing, USAFL also stated that “Plaintiff farms and agribusinesses will be forced to pay unlawfully high wages, causing them to lose profits, lose access to the H-2A visa program, scale back operations, and even go out of business.” 

The Department of Labor declared under the penalty of perjury that wages for first-line supervisors of agricultural workers will increase anywhere from 85.6% to 147.7%, or on average 122.6% as soon as the new policy goes into practice. 

USAFL argues that the policy change is unlawful under the Administrative Procedure Act by violating the department’s mandate to protect the wages of similarly employed agricultural workers or, in other words, having an “apples to apples” approach to assigning minimum wages. 

The Department of Labor has responded by stating that this new methodology would only affect “2 percent” of job applications, but according to their admission, “the Department does not have any data readily available to estimate the number of workers that may have their SOC codes reclassified as a result of the final rule,” according to the suit. 

Alex Cracchiolo, head of marketing at USAFL, said in an interview with CJ that based on an internal survey of the types of task their customers hire workers to do, 64.75% of the clients who responded would have their workers assigned heavy trucking rates, 28.78% would have workers assigned first-line supervisor rates, and about 3% would have workers assigned a construction or mechanic rate. Only one person in the survey said that they would be unaffected, a far cry from the estimated 98% unaffected rate that the labor department refers to. In fact, USAFL estimates are that 99.28% of their clients would be affected. 

As Cracchiolo points out, the 98% figure is most likely a result of the Labor Department looking at data before their rule change and taking into account how many jobs would be recategorized. 

One example that the suit outlines is how a worker who drives a semi-tractor-trailer truck to and from specific locations could be categorized as a heavy truck driver instead of an agricultural equipment operator. This would be because although they may only be driving the truck for a small portion of their job, it is the highest-earning duty of their job description requiring them to be paid as if they were a full-time truck driver according to the new rule. 

According to Cracchiolo, over a 10-month season, farmers could be looking at an extra average operating cost increase of over $100,000.

“Most of the customers that we talk to, they tell us, ‘Like, look, I’ve been posting jobs on Indeed. I’ve been posting jobs in newspapers, I can’t find any workers to help me here at all. It’s just me out there working on everything, trying to get everything done myself, I’m sleeping three hours a night,’” Cracchiolo said. 

Additionally, the suit also points out the possibility that if this rule is allowed to stand, this could motivate some farmers to turn to undocumented labor. “This Rule will increase the number of unauthorized workers in the agricultural sector thereby further depressing similarly employed U.S. workers’ wages and working conditions,” the suit states.