By Jessica Domel
Multimedia Reporter<\/p>\n
A federal judge ruled the Department of Labor (DOL) must rewrite the new methodology it uses to calculate hourly wage rates for H-2A guestworker visa program users.<\/p>\n
U.S. District Judge Kirk Sherriff of California wrote DOL\u2019s interim final rule (IFR) \u201cis both arbitrary and capricious and procedurally defective.\u201d<\/p>\n
He said the rule asserts employers are being priced out of the H-2A program without citing any evidence.<\/p>\n
The ruling comes after United Farm Workers (UFW) and other groups filed for a summary judgement in a lawsuit against DOL\u2019s IFR, arguing it was \u201cnot in accordance with the law\u201d and is arbitrary and capricious.<\/p>\n
\u201cThey assert the four components of the IFR deliberately lower AEWRs (Adverse Effect Wage Rates) to the point they no longer track relevant market rates, and that DOL did not reasonably consider whether this comports with its statutory obligation to protect U.S. farmworkers from the adverse effects of hiring H-2A workers,\u201d the judge\u2019s ruling said.<\/p>\n
UFW challenged the AEWR tier system, the housing adjustment, the use of the Occupational Employment and Wage Statistics (OEWS) and the greater than 50% rule.<\/p>\n
The new AEWR, released earlier this summer, created a two-tier system for wage rates. Skill level one corresponded to those employees conducting entry-level farm labor duties.<\/p>\n
Skill level two corresponded to more experienced work or supervisory-adjacent roles.<\/p>\n
The IFR, according to court documents, states that skill level one wage rates the AEWR paid to 92% of H-2A workers will equal the 17th wage percentile for all workers rather than the mean.<\/p>\n
The AEWR for skill level two jobs was reportedly at the 50th wage percentile.<\/p>\n
The judge wrote \u201cwhile DOL\u2019s choice to separate H-2A workers into two tiers is not inherently unreasonable, its choice to set the skill level one AEWR at the 17th percentile and the skill level two AEWR at the 50th percentile is unreasonable and arbitrary and capricious.\u201d<\/p>\n
The wage rate also took into account housing provided to H-2A employees and allowed for a housing adjustment.<\/p>\n
\u201cThe IFR does deduct housing costs from the wages of H-2A workers,\u201d the judge wrote. \u201cIt deliberately lowers AEWRs\u2014the minimum wage that H-2A workers must be paid\u2014to account for those housing costs. The housing is now provided at a cost that comes directly from H-2A workers\u2019 wages, and the IFR contravenes the regulation\u2019s requirement that agricultural employers \u2018provide housing at no cost to H-2A workers.\u2019\u201d<\/p>\n
The judge also argued the housing adjustment exceeds the value of the housing that many H-2A workers receive.<\/p>\n
The new AEWR uses the Occupational Employment and Wage Statistics (OEWS) in lieu of the Farm Labor Survey, which was discontinued by the U.S. Department of Agriculture.<\/p>\n
The judge ruled the DOL must consider alternatives, including those that adjust the OEWS data to address the undercalculation of farmworker wages reflected in the data.<\/p>\n
The plaintiffs also expressed their concern with the IFR\u2019s use of the \u201cgreater than 50%\u201d rule.<\/p>\n
According to court documents, under the rule, if an H-2A job involves duties that fall under multiple Standard Occupational Classification (SOC) codes, the entire job will be subject to the code that applies to the tasks the worker performs for the majority of their time.<\/p>\n
The judge ruled this could adversely affect farmworkers wages as it could encourage employers to intersperse higher-skilled, higher-paying work among many workers so they higher-paying work is never a duty primarily performed by any one employee.<\/p>\n
The judge found the IFR unlawful and ordered the DOL to produce a new methodology for calculating AEWRS for H-2A workers. The IFR was not vacated.<\/p>\n
The court ordered the DOL to notify growers they may be required to pay backpay to H-2A workers for the period between Aug. 26, when the judge\u2019s ruling was entered, and the date when DOL publishes new AEWRs.<\/p>\n
The ruling says whether backpay should be awarded and in what amount is reserved until the new AEWRs are published.<\/p>\n
The new wage calculation raised wage rates for H-2A employees in 39 states and territories.<\/p>\n
In some areas, wage rates increased by up to 20%.<\/p>\n
In Texas, wages for skill level one employees rose 4.3% while skill level two employee wages increased 3.9%.<\/p>\n
The wage rate for skill level one employees in Texas for 2026-27 is now $10.40 per hour, up 4.3% from 2025-26.<\/p>\n
The national rate for the same skill level is up 3.5% to $12.31.<\/p>\n
The wage rate for skill level two employees in Texas is now $14.37, up 3.9%.<\/p>\n
The national wage rate for level two employees is up 2.1% to $16.07 an hour.<\/p>\n","protected":false},"excerpt":{"rendered":"By Jessica DomelMultimedia Reporter A federal judge ruled the Department of Labor (DOL) must rewrite the new methodology…\n","protected":false},"author":2,"featured_media":451220,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[155175,155176,27,29,28],"class_list":["post-451219","post","type-post","status-publish","format-standard","has-post-thumbnail","category-texas","tag-h-2a-guestworker-visa-program-users","tag-h-2a-wage","tag-texas","tag-texas-headlines","tag-texas-news"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/posts\/451219","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/comments?post=451219"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/posts\/451219\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/media\/451220"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/media?parent=451219"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/categories?post=451219"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/tags?post=451219"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}