DOL Publishes New Adverse Effect Wage Rates Based on USDA’s New Farm Labor Report – H-2A Wage Rates Increased in 2021
The Department of Labor (DOL) has formally published the annual Adverse Effect Wage Rates (AEWRs) for 2021 for the H-2A temporary foreign agricultural worker program. The rates, which are based on regional wage surveys conducted by the USDA, have increased in every state from the 2020 levels.
The AEWRs were released later than usual and only after court orders against the Trump Administration. The United States Department of Agriculture (USDA) announced in September 2020 that it terminated the Farm Labor Survey and would no longer publish the Farm Labor Report. The survey and the resulting report determine the AEWRs—the most important wage floor for the H-2A temporary agricultural visa program that brings in tens of thousands of foreign workers to labor in seasonal agricultural jobs each year. Not long after the USDA cancelled the Farm Labor Survey, the DOL announced major changes to the methodology for setting the AEWRs, beginning with a two-year wage freeze. According to the DOL, this rule change would have cost farmworkers $1.68 billion in lost wages over the next ten years.
Because of the report’s importance in setting the AEWR and the AEWR’s importance in protecting farmworker wages, Farmworker Justice, along with Wilmer Hale, represented the United Farm Workers and the UFW Foundation in two related lawsuits against the USDA and the DOL. We won both an injunction ordering the USDA to complete the annual wage survey and an injunction preventing DOL from changing the AEWR methodology and requiring the DOL to set the 2021 AEWRs based on the USDA final report.
Both agencies, during the Trump Administration, informed the court that they would comply with the court’s orders, despite initially filing appeals. The USDA then published the Farm Labor Survey on February 11, 2021, and the DOL published the 2021 AEWRs on February 23, 2021. The new rates took effect immediately.
The national average of the AEWRs, which vary by state, increased to $14.28 per hour in 2021 from $13.99 per hour in 2020. The AEWRs increased in every state in the country—from 10 cents per hour to $1.28 per hour. The attached chart shows the AEWR for each state from 2020 to 2021 as well as the percentage change.
The H-2A program requires employers seeking temporary foreign workers to demonstrate a labor shortage by offering wage rates that will not “adversely affect” the wages of U.S. farmworkers. The Adverse Effect Wage Rate is a central way that this requirement is enforced and is based on the regional average wage rates for nonsupervisory farmworkers. We are pleased that this important wage protection is continuing and that farmworkers’ wages are modestly improving, but farmworkers remain among the lowest-paid workers in the nation, and the H-2A program requires reform to end its widespread abuses.