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January 2013, Volume 19, Number 1

H-2A; H-2B

DOL published 2013 Adverse Effect Wage Rates on January 8, 2013. AEWRs range from a low of $9.50 an hour in states such as Louisiana and Mississippi to $12.72 in Hawaii. The AEWR is $10.74 in California, and $9.68 in North Carolina, the state with the most H-2A workers.

The AEWR is a monthly rate for sheepherders in western states, $750 a month plus room and board in the mountain states such as Colorado and Idaho, and $1,422.52 a month in California, Oregon and Washington.

The outgoing Bush administration in January 2009 changed H-2A regulations to allow farm employers to attest to their need for labor and changed the basis of the special minimum wage that farmers must offer and pay, the Adverse Effect Wage Rate, in ways that lowered the AEWR by an average $1.44 an hour. The Obama administration returned the H-2A program to a certification base, returned the AEWR to its original basis in March 2010, and introduced an online registry of H-2A jobs.

Growers sued DOL for returning to the old H-2A regulations, and a federal judge allowed the Bush regulations to remain in place through 2010. The UFW and other farm worker groups sued, asking a federal judge to rule that the extra nine months of the Bush AEWR was unlawful, and that farmers who paid lower Bush-regulation wages should pay what farm employers say would be up to $400 million in back wages.

In December 2012, the 4th US Circuit Court of Appeals upheld a lower court decision that DOL acted "arbitrarily and capriciously" in providing only a short period for comments on reinstating the old H-2A regulations. The Court of Appeals rejected the UFW's suit requesting that farmers pay back wages to compensate for the lower AEWR of 2010.

GAO released a report in September 2012 that noted 90 percent of employer applications for H-2A workers were approved in FY11.

H-2A. ADP, a payroll processing firm, announced in January 2013 that it would help farmers with record-keeping for H-2A workers. ADP's Jeff Ballew estimated that using ADP would save growers fines for non-compliance. He said that ADPP is "on a mission to change the industry with H-2A. We are far less expensive, remove more administrative burdens and we mitigate the major compliance exposures."

Global Horizons, the now-defunct Los Angeles-based farm labor contractor that brought Thai H-2A workers into Hawaii and Washington, was sued in April 2011 by the Equal Employment Opportunity Commission for a "pattern or practice" of discrimination and retaliation against Thai workers. The EEOC alleged that the growers where the Thai H-2A workers were employed were joint employers with Global.

Global and the growers twice persuaded a federal judge to dismiss some of the EEOC's allegations, but the judge allowed the EEOC to amend and refile its complaint, which it did, and in November 2012 allowed the EEOC suit to proceed.

Western sheep farmers rely on H-2A shepherds, many from Peru and Chile, who must be paid at least $750 a month, a minimum wage that has not changed in "a long time." Sheepherders live in trailers on the range, working seven days a week and depending on their employers for food and water; the trailers must be inspected by the State Workforce Agency at least every three years.

The economics of raising lambs for meat have changed as a result of consolidation of the feedlots that finish and slaughter them. Farmers have been receiving less than $1 a pound for lambs that are bought by the four feedlot and slaughterhouse firms that account for two-thirds of US lamb meat sales.

H-2B. Eller and Sons Trees based in Franklin, Georgia was ordered to pay almost $12 million to 4,000 H-2B workers who planted pine seedlings in southeastern states. A court found that the wages of the H-2B workers fell below the minimum wage because they paid for passports, visas and travel costs, and had fewer hours of work than Eller promised.

McKenzie Romero, "Utah sheep industry relies on foreign labor," Deseret News, November 27, 2012. GAO. 2012. H-2A Visa Program: Modernization and Improved Guidance Could Reduce Employer Application Burden. GAO-12-706 September 12. www.gao.gov/products/GAO-12-706