DoL Releases New AEWR Rules for H-2A Program

The Department of Labor recently released new rules surrounding the H-2A program’s Adverse Effect Wage Rate. The new rules will change the way employers file job orders and the wages of some employees could be significantly changed. The biggest change is if an employer has a job that does’t fit one of the six classifications that are sampled in the USDA NASS Farm Labor Survey, the job could get a wage other than the traditional AEWR.

Many H-2A users have been shocked in the past two years by HUGE increases in the Adverse Effect Wage Rate. The rate is supposed to make sure that the employers don’t use the program to adversely affect the wages for similar jobs in the local area. The government didn’t want to depress wages by using ‘cheap foreign labor’. To determine this they have used various means but in recent years, they have been using the USDA National Ag Statistics Service Farm Labor Survey results as a floor. Overly simple logic says that any wages below the average will pull it down and ‘adversely’ affect those receiving that average.

The new rule seeks to make sure the H-2A program not only doesn’t adversely affect those field and livestock workers but also other occupations that are done on the farm but are not field and tractor type work. There are six classifications that are sampled in the FLS. The vast majority of jobs that H-2A employers have are going to be in those jobs but there are some such as Truck Drivers, Crew Leader/manager etc. that would be outside and will have to have a different wage. For these jobs, the DoL is looking to the Bureau of Labor Statistics Occupational Employment Wage Survey. The OEWS samples a lot fewer employers to get its data and doesn’t differentiate regions as much as the FLS does. This could translate into a ginner in S. GA having to pay truck driver rates that employers in ATL pay. It could also mean that those jobs would need a separate contract. We’re still working to understand the new rule and its implications.

The National Council of Ag Employers is an organization that has the H-2A program as one of its main issues. They are planning on contesting this new rule in court but in the mean time, they will be holding a webinar next Tuesday March 21, at 3 PM EDT on this new rule. If you’re interested, you may want to attend. I am attaching below some background material and you can find a link to the actual rule here.

This will not be the last we will write on the new AEWR rules. Please work with your provider (agent, lawyer, FLC etc. ) to see how this new rule could change the way you file and pay your workers. Register for the NCAE Webinar HERE.