Last Fall the Department of Labor made significant changes to the way the Adverse Effect Wage Rate is calculated across the H-2A program. In most cases this lowers wage impact to most users of the program.

The new Interim Final Rule became effective on the day it was release, just before the government shut down in October. The new rule sets up a two-tier skill requirement based wage and creates a wage adjustment for the H-2A workers accounting for some of the non-wage based benefits such as the cost of housing.

This interim final rule has been challenged by the United Ag Workers in California. The first hearing in the case will be today. An Interim Final Rule (IFR) becomes effective immediately while comments are taken and evaluated with a Final Rule coming out some months later. It is widely expected that the Final version of this rule will come out early this summer. This could complicate this law suit. If the FR comes out before the judge rules in the case, it could become a moot point as the IFR (the rule that was challenged) would be replaced by the final rule. If the judge rules against the IFR in the case before the Final Rule is published, the IFR could be tossed out and the Final Rule blocked.

There’s a lot going on with this case and it could make a significant difference in the wages paid to H-2A workers this fall. We will be watching for the outcome of this case as it makes its way through the court.

DSF