The Department of Labor uses the USDA NASS Farm Labor survey to develop the Adverse Effect Wage Rate (AEWR) for H-2A purposes. For many years the average wage in the FLS has become the AEWR for the following calendar year. The reason for the AEWR is that in the law that established the H-2A program, it says that the importation of workers shall not have an ‘adverse effect’ on local wages. The agency uses this survey to make sure the wages will not be impacted by bringing foreign workers in and displacing local workers with ‘cheaper’ foreign workers.
The FLS is conducted over the course of a year by the National Ag Statistics Service (NASS). NASS has been collecting this data for many decades. It is not collected for the purpose of use by the DoL and DoL has no influence on how the survey is conducted. It is more targeted (more surveys done) than the Bureau of Labor Statistics (BLS) Occupational Employment Wage Survey (OEWS) in the agricultural community and is ‘thought’ to be a better representation of the ag community as a whole.
The Survey shows an increase in most Southeastern states of about a dollar per hour (See Table). The new wages will kick in when the DoL publishes them in the Federal Register. This will likely be right at the end of the year. Watch your inbox or keep up with your agent or contractor for exactly when the higher wages are due.
We have a lot of problems with just using the FLS as the only means to determine the AEWR. The Farm Labor Survey, as mentioned before was not designed as a survey for AEWR purposes. NASS does not discriminate between H-2A users and non-users. Workers in corresponding employment or neighbors can be influenced by the H-2A wage locally. More H-2A workers are being employed today than ever before. Additionally, the FLS does not take into account any of the other expenses that go a long with the program such as inbound and outbound transportation, housing, meals (in some instances) and in the case of more and more states, overtime for farm workers. While the FLS may capture more workers in ag than the OEWS and may be a better statistical representation of pure wage it does NOT take into account the expense to the employer (effective wage on the employer).
One of the more common Wage and Hour violations that Small Business faces is that of “Employee Mis-Classification”. This occurs when an employee is treated as exempt from overtime when they are really not. Most of the time it happens with administrative personnel that are salaried but should still be subject to overtime.
In order to be exempt, an employee has to pass BOTH of two tests. The first is that they get paid a salary that is at least $684 per week or $35,568 per year. The second is that they must fit in one of the “duties tests” for one of the exemptions. We’ve written about this before but Wage and Hour Division (WHD) has a number of fact sheets for more information.
The WHD has recently announced a proposed rule that would raise the minimum salary from $35,568 to $55,000 ($1059 per week) and it provides for a mechanism to adjust that minimum salary every 3 years.
One other change for “Highly Compensated Employees” (Basically no “duties test”) the proposal raises the minimum from $107,432 to $143,988. The comment period will be open until November 7. No proposed implementation date as yet but it will likely be soon after a final rule is published.
Each Year the Southeastern Cotton Ginners Association recognizes one of our members… either a gin or an individual.. as the Southeast Cotton Ginners of the Year. We are in the process of accepting nominations for the 2022 Ginner of the Year. If you know an outstanding ginner, please download the accompanying application and send it to us.
Applications can be scanned and emailed (preferred) or faxed. Please send them to dusty at southern-southeastern dot org or fax to 706-344-1222. The deadline for this year’s nomination is October 11. Give us a call if you have questions.
Yep it’s still summer in the southeast and it’s still hot. National Weather Service has issued heat advisories and excessive heat warnings for the southern areas of Georgia,Alabama, South Carolina. This pattern is expected to continue through the weekend.
Take a minute to read the articles linked below from the Gin Press concerning heat illness and injury prevention. Please make sure you have a plan in place and taking appropriate precautions to protect your employees from heat illness and injuries.
On July 21 the USCIS announced the development of a new form I-9 Employment Eligibility Form. All new hires or re-hires after November 1, 2023 must use the new form. The previous form has an expiration date of October 2022 can be used until October 31. You can begin using the new I-9 TODAY, August 1, 2023.
The new form is now only one page and is expected to be simpler for both employers and employees. There is also new instructions for the new form and the ability to use the new form with E-Verify if you have ‘remote’ employees. While this last bit isn’t necessarily the most important for cotton gins, we wanted to make you aware of it just in case.
The new I-9 form can be found by going to www.uscis.gov/i-9 . Please follow that link to download the new form, instructions and M-274 Handbook. All are supposed to be smaller than before.
The new form is for new hires, re-hires and re-verification. The re-verification process is supposed to be clearer and easier to understand which and when certain documents need to be re-verified.
More information on the new form can be found at the I-9 Central page. The M-274 Manual is LONGER and has specific instructions for H-2A employers and continues to contain language that Seasonal Workers are considered continued employment. This is only if the employee leaves solely because the work ran out and came back when the work returned. Otherwise, you need to fill a new I-9 or use the re-verification section, Supplement B (Formerly Section 3).