Statement on Recent Wage and Hour Activity

A week ago, January 10, 2022, the Wage and Hour Division of the Department of Labor posted a press release stating that 80 percent of gins investigated owed back wages or penalties for non-compliance with Labor Laws. Articles citing this press release have been published in newspapers and trade publications, large and small.

On January 12, we released the statement below. It is never any of our members intent to break the rules. Labor laws and rules governing agricultural labor are complex and often hard to understand. We are working with the Wage and Hour division and others on improving compliance among our members. Please give us a call if you have any questions regarding our statement.

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OSHA’s Vaccine Mandate Moving Forward

Late Friday afternoon a three judge panel in the Sixth Circuit lifted the stay on the Biden Administration’s Emergency Temporary Standard (ETS). The ETS has a number of ongoing law suits and a Federal appeals court placed a stay on the rule before it even got going. Now the Sixth Circuit has lifted that stay and the rule may proceed.

For review, this vaccine mandate only applies to employers with 100 or more employees company wide. OSHA has said it will use it’s enforcement discretion for this rule. OSHA will begin enforcing the rule on January 10 with a February 9 deadline for the vaccine or test requirements.

More will follow after we have a chance to digest this ruling. This is likely not the end of this and we will continue to see how this unfolds. If you have or have had more than 100 employees since November 5 (original date of rule) you will need to move forward with your compliance activities.

More to come

DSF

H-2A Wages Increasing

This past week, the Department of Labor has published the new Adverse Effect Wage Rate for 2022. The new wages actually start on December 29 and until new AEWR’s are published next year. This means that if you are using H-2A labor, Starting December 29, 2021 you will need to pay them and US workers in corresponding employment the NEW AEWR. These rates are set by state or groups of states.

State2021 AEWR2022 AEWR (Dec 29, 2021)
Alabama$11.81$11.99
Florida$12.08$12.41
Georgia$11.81$11.99
North Carolina$13.15$14.16
South Carolina$11.81$11.99
Virginia$13.15$14.16

We’re also monitoring potential changes that the DoL has recently published as a proposed rule. The proposed rule has the potential to significantly affect the H-2A wages in many industries. We’re not clear on exactly how the proposed changes will affect gins that use the H-2A program. We will update as things firm up.

OSHA Vaccine Mandate Slowed/Stopped

As I mentioned in last weeks article, the OSHA Emergency Temporary Standard (ETS) situation changes nearly every day. And that is indeed the case. Since I last wrote about this, the Fifth Circuit Stayed enforcement and implementation of the rule pending other cases.

The Circuit was the first to put an emergency stay on the rule on November 6. A week later it had heard arguments from both sides and said the stay would remain until a full hearing and final decision was made. That decision will likely come from the court selected to hear all the cases that have been filed as a consolidated case. Which court that will be is to be determined later this week.

Since multiple cases have been filed in multiple courts of appeals, OSHA as requested that they be consolidated. The move means the US Judicial Panel on Multijurisdictional Litigation will draw single court to hear the joint case. The lottery is currently scheduled for tomorrow the 16th of November.

Since this court has completely stayed the enforcement and implementation of the rule, this means that the December and January deadlines are likely not going to remain as they are. The court will likely lay out a time for arguments shortly after being selected but will give time for the litigants to work on their briefs as a group. While last week we expected to the process would be done by Thanksgiving, it seems pretty unlikely and not by the December 4 deadline.

What should you be doing Now.

I would still try to figure out whether the 100 employee minimum has any chance of touching you. If you MAY be under this rule, I would go ahead and be looking at making the decision on vaccine mandate or vaccine plus testing and get those decisions out of the way. If you will NOT be affected by this rule, as written, remember that OSHA is seeking comments on a permanent rule. They seem to have every intent on making this permanent and as broad as possible.

Just because the rule may not directly apply to you, you should have policies and procedures in place to help minimize the spread in your operation and/or housing. Whether you require vaccines, help people get vaccinated by working with a local health department or whatever, require masks, or whatever, you should be doing the steps necessary to keep your whole gin from going down at once. If you have an outbreak your goal is to keep it from taking the entire crew or office out. (That’s a lot easier said than done but that’s the goal.

More to come

The House Passes Two Immigration Bills… On to the Senate

The House of Representatives passed two immigration reform measures yesterday aimed at providing farm workers and others legal status and reforming the H-2A Program.

The more limited of the bills would allow for a path to citizenship for those that were brought here as minors. These are the so-called “DREAMERS”. This group has been able to work in this country for some time under an executive order in the Obama administration. President Trump tried several times to overturn the EO unsuccessfully. The Trump administration said that this was a job for the Congress, not the executive order.

The Dreamers have been working under what is referred to as “deferred action for childhood arrivals”. The bill would allow them to have a permanent status and a path to citizenship.

The second bill is the Farmworker Modernization Act (FWMA). This bill passed the House in December of 2019. The bill has significant reforms to the H-2A program and allows for those that have been working in the US illegally in agriculture to have a path to permanent status and possibly to citizenship. The bill isn’t without warts although many of the H-2A changes are things that agriculture has been working on for some time.

Several ag groups have supported the passage of the FWMA but many are on the sidelines until some changes can be discussed in the Senate including the American Farm Bureau.

Speaking of the Senate. We have been told that major immigration legislation will be passed out of the Senate but that’s not to say that these bills are dead. It will take some significant changes to get enough republicans to support the measures. We are monitoring these changes and since many of our members are now using the H-2A program, we are working with other commodity groups to protect our ability to have a reliable legal workforce going forward. Stay Tuned

DSF

AEWR To Be Posted Tomorrow

As previously reported, the 2021 Adverse Effect Wage Rate (Minimum wage for H-2A employers) was delayed due to legal activity over a proposed rule in the waning days of the Trump administration. The USDA wage survey results were released on Feb 11. Tomorrow the DoL will publish the AEWR for 2021 with the wages effective immediately upon publication.

What does this mean? If you don’t hire H-2A workers, then it doesn’t mean anything. If you are currently working H-2A employees then they and your corresponding domestic employees will need to be paid the new wage. If you don’t have any H-2A or won’t until the harvest season, the new wages will need to be paid for 2021.

Wages for 2021 are below.

State2021 AEWR
AL$11.81
FL$12.08
GA$11.81
NC$13.15
SC$11.81
VA$13.15

Your agent or contractor that you work with will be sending this information to you soon if they haven’t already but we wanted to make sure you had it for planning purposes.

DSF