The Eastern District of California issued a supplemental order on Tuesday regarding a lawsuit filed by United Farm Workers against the Department of Labor (DOL). The order gave more details regarding the injunctive relief which the court granted to the plaintiffs on December 23.
This lawsuit, similarly to another filed by the same plaintiffs against the United States Department of Agriculture (USDA), was based on the departments’ attempts to change a rule which is used to provide farmworker information, and determine Adverse Effect Wage Rates (AEWRs) for farmworker wages. In each case, the Eastern District of California ruled in favor of an injunction ruling that the newly proposed system was not ready to provide the data needed for 2021 and the departments should continue to publish AWERs based on the previous regulations.
In Tuesday’s supplemental order, the court ruled that the DOL should release 2021 AWERs by February 25. The order also said that the typical two week time period between publication of the numbers and their effective date to give employers time to prepare will be eliminated. The court further cautioned the DOL that “a failure to strictly comply with the dates set forth in this order may result in serious consequences.”
Regarding what numbers should be used between the start of the year and when the AWERs are published, Judge Dale A. Drozd said that the DOL’s method of using the 2020 numbers was “more straightforward and efficient” than the plaintiff’s request that it is adjusted based on the region after analyzing the average rate of increase for the last five years. However, it did say that the plaintiff’s objection to using 2020 AWERs was “potentially well taken” and that the defendants should provide H-2A employers with notice that there could be an award of backpay granted for farmworkers based on the difference between the 2020 and 2021 numbers.
These decisions came after the parties met to confer on January 6, failed to reach an agreement, and submitted separate proposals for the court to review. The court explained that it adopted mainly the proposal from the defendant, but added some modifications.
The United Farm Workers are represented by Farmworker Justice and Wilmer Cutler Pickering Hale and Dorr and the USDA and the DOL are represented by the United States Department of Justice.
