Late yesterday, the US District Court for the Western District of Louisiana issued a permanent injunction and vacated the 2023 AEWR Rule for the H-2A program. This is the rule that changed how truck drivers and supervisors (and several others) minimum wages are calculated using the OEWS Survey.

The law that created the H-2A program says that the wages used in that program cannot have an Adverse Effect on the wages of domestic workers. The Department of Labor (DoL) has determined that the USDA Farm Labor Survey (FLS) average wage would be a floor for wages and anything below that would have an adverse effect.

In 2023 they went beyond that and with the new AEWR Rule it created a core “Big Six” jobs that were still governed by the USDA FLS but anything outside the Big Six would have the Adverse Effect Wage Rate set by the Bureau of Labor Statistics Occupational Employment Wage Survey (OEWS). This meant that any job not covered by the FLS, would have the AEWR calculated based on data that was largely non-agricultural in nature.

In our world, the most common jobs that would fall outside of the FLS big six were truck drivers and front line supervisors. The 2023 rule significantly increased the wages for these two classifications. This also forced folks to have to have separate contracts for the truck drivers and supervisors from the rest of the crew since the wage for the full contract was the highest job description in the contract AND it created a situation that if that truck driver came in and did any job on the H-2A contract, all the other H-2A’s got that higher wage for that pay period.

The Court’s action last night tossed the 2023 rule completely and the H-2A program to revert to the Farm Labor Survey only. TO BE CLEAR THIS APPLIES TO NEW CONTRACTS THAT GO IN AFTER 8/27/2025. Any contracts in the process or approved already are still subject to the 2023 AEWR rule. The only H-2A AEWR starting with any new contracts will be the FLS derived AEWR… GA, AL, SC – $16.08; FL – $16.23; NC and VA – $16.16 for 2025.

The National Council of Agriculture Employers and others are also suing for the removal of the FLS as well. The argument is that there has never been a justification for use of the FLS as the wage floor and that underlying premise of an adverse effect has not been demonstrated, particularly when no one is applying for these jobs. This action along with work in Washington is ongoing.

This is great news and we applaud the work of NCAE and the other parties in this suit as well as Secretary Chavez-DeRemmer for her understanding of the detrimental effect of the 2023 Rule.

DSF