The Eastern District of California on Friday amended a May 14 order to make clarifications regarding its ruling to require farmworkers working under H-2A visas to be paid backpay by their employers based on the 2021 Adverse Effect Wage Rates (AWERs).
The matter began when United Farm Workers contested new rules from the U.S. Department of Agriculture and U.S. Department of Labor (DOL) in two lawsuits, one against each department. The proposed rules replaced the system for taking farm labor surveys and determining yearly AWERs which sets the requirement for farmworker wages each year. The courts agreed with United Farm Workers that the newly proposed systems would not be in place and approved with enough time to determine 2021 wages, and required the departments to publish wages as was determined under the current rules.
Because of the legal battles, the government did not publish AWERs before the start of the year, but published them on February 23. In May, the court ruled, as was requested by the plaintiffs, that farmworkers should be given backpay by their employers to account for the difference between their wages and what they should be paid under the 2021 AWERs.
In the amended order filed on Friday in the lawsuit against the DOL, the court clarified that backpay is only required to be paid by certain employers, those who received H-2A certification or submitted job orders between December 21, 2020 and February 23, 2021. This language was in the prior order, however, the plaintiffs argued that it should be removed citing that this language would give backpay to 1,404 farmworkers, but taking the language out would give wage adjustment payments to 94,223 farmworkers.
The order stated, ”upon reflection, the court acknowledges an ambiguity within its May 14, 2021 order with regards to which farmworkers would receive backpay under the 2021 AEWR for work they performed during the Interim Period. The court’s order intentionally highlighted the importance of reasonable reliance and notice, and it was always the court’s intent to strike a balance by compensating farmworkers at the correct rate where growers had timely notice of that possibility while not imposing an unfair hardship on growers who had no such notice at the time they applied or contracted for H-2A farmworkers.”
The filing clarified that although some language could be construed to mean that all farmworkers would be granted the relief of backpay, the court never had this intent and that it did not intend to require over 3,500 employers who did not have notice about the possible backpay requirement to need to issue backpay. The court recognized the plaintiffs’ argument that each dollar is important to many H-2A workers, but said that the court must also consider the hardship that requiring backpay could have on growers who did not have notice.
The language of the current order clarified that employers who submitted job orders or applications for H-2A visas between the time period would be required to make wage adjustment payments for employees who worked between January 15, 2021 and February 23, 2021 within 60 days of receiving notice. The DOL reportedly presented data showing that under this ruling approximately 6,464 farmworkers could receive the wage adjustment.
In the same order, the court accepted a proposal from the DOL which the plaintiffs did not oppose directing the defendant to certify that farms are in compliance with the wage adjustment and to notify employers that they are responsible to record earnings and comply with the restitution obligations from the previous order. It also granted a limited stay of the defendant’s compliance deadline.
The United Farm Workers are represented by Farmworker Justice and Wilmer Cutler Pickering Hale and Dorr.
