April 2023, Volume 29, Number 2
DOL revised its AEWR methodology effective April 1, 2023, switching from one AEWR per state based on the USDA Farm Labor Survey of farm employers who hire workers directly to five to 10 AEWRs in each state based on the job to be filled. AEWRs will be set using the FLS if it generates an earnings for a particular job title. If not, DOL’s OEWS will be used to establish AEWRs.
Most employers of H-2A workers oppose the new AEWR methodology. There are efforts in Congress to block the new AEWRS under the Congressional Review Act and via the Farm Operations Support Act (S 874), which would maintain 2022 AEWRs in 2023.
DOL emphasized that 98 percent of job titles are covered by USDA’s FLS, including about 85 percent who were Farmworkers and Laborers, Crop, Nursery and Greenhouse Workers (45-2092) in FY22; seven percent who were Agricultural Equipment Operators (45-2091); four percent who were Farmworkers, Farm, Ranch, and Aquacultural Animals (45-2093); and less than one percent who were Graders and Sorters, Agricultural Products (45-2041) and All Other Agricultural Workers (45-2099).
For job titles that are not covered by the FLS, including construction laborers, truck drivers and supervisors, DOL’s Occupational Employment and Wage Survey will be used to set statewide AEWRs. DOL emphasized that these nonfarm job titles have higher hourly wages than field and livestock workers, so farm employers can save money by calling heavy truck drivers (SOC 53-3032) who move harvested crops over public roads to processing or storage facilities agricultural equipment operators (45-2091) in order to pay lower the lower FLS hourly wage and avoid overtime pay requirements.
Similarly, construction laborers (SOC 47-2061) who build facilities on farms may be called animal farm workers (SOC 45-2093), resulting in lower wages and no overtime. Finally, those who drive workers between their housing and fields could be deemed Shuttle Drivers and Chauffeurs (53-3053) whose wages are set by the OEWS.
DOL plans to announce new AEWRs based on the FLS to be effective January 1 of each year, and new AEWRs based on the OEWS to be effective July 1 of each year.
DOL’s analysis of the impacts of the new AEWR methodology reported that 10,000 unique employers (excluding FLCs) were certified to employ H-2A workers in FY20 and FY21. A sample of 2,600 of these farm employers found that 80 percent were small, with an average 11 employees and average annual revenues of $3.6 million.
DOL analyzed a sub-sample of 2,100 farm employers and found that a third were in NAICS 111998, miscellaneous (often seed production) crop farming, 15 percent were nurseries and garden centers (444220) or landscaping services (561730), and 10 percent were fruit and vegetable (retail) markets (445230) or fruit and vegetable wholesalers (424448). This means that two-thirds of the DOL sample had NAICS codes outside FVH agriculture, which encompasses NAICS 1112 vegetables and melons, 1113 fruits and nuts, and 1114 horticultural specialties from greenhouse and nursery crops to mushrooms.
DOL ordered $1 million Salinas-based FLC A Oseguera Company to pay almost $1 million in back wages to H-A workers in December 2021, and in February 2023 negotiated a consent decree that requires Oseguera to pay another $460,000 in final paychecks and unreimbursed transportation costs.
The Farm Workforce Modernization Act was approved by the House in 2019 and 2021, but not considered by the Senate, where the Affordable and Secure Food Act was introduced in December 2022. Both bills would have allowed unauthorized farm workers to become probationary immigrants and their family members in the US to become legal immigrants and naturalized US citizens, made it easier for farm employers to hire H-2A guest workers, and required farm employers to use E-Verify to check new hires.
With House Republicans focused on unauthorized migration across the Mexico-US border, there is little prospect that the 118th Congress will enact a bill that legalizes unauthorized farm workers. Some worker advocates want a quicker path to immigrant status, while some farm organizations want more H-2A visas to fill year-round farm jobs and limits on the ability of H-2A workers to sue farm employers.
The Farm Operations Support Act introduced in March 2023 would roll back AEWRs to their 2022 levels
DOL announced in March 2023 that its H-2A Workers' Wages Recovery Program aims to provide $6.5 million in back wages owed to Mexican H-2A workers by providing worker names to the Mexican Ministry of Labor and Social Welfare.