United Farm Workers Says Dept. of Labor Should Be Required to Ensure Farmworkers Get Full Pay After Wage Rate Delay

United Farm Workers and UFW Foundation (UFW) asked the Eastern District of California on Friday to enforce its preliminary injunction against the United States Department of Labor (DOL). The organization claimed that farmworkers, specifically farmworkers with H-2A visas, lost, on average, about $325 each because they were denied wage increases at the start of 2021 after the DOL failed to publish wage rates before the end of 2020.

“For farmworkers and their families already struggling to survive on subsistence incomes, this is a significant loss. And they suffered that loss solely because the (DOL), in coordination with the U.S. Department of Agriculture (USDA), unlawfully sought to alter the H-2A program to transfer billions of dollars from farmworkers to growers through an unpermitted freeze of DOL’s Adverse Effect Wage Rates (AEWRs),” the filing said. UFW claimed that if the departments had “complied promptly” with the court’s injunction, they could have published the rates by the end of the year.

UFW said the court did not tell the defendants that they needed to publish the AEWRs and that “the equities favor ordering wage adjustment,” which the court is authorized to require, according to the filing. The plaintiffs asked the court to require the DOL to direct farmworker’s employers, or growers, to reimburse the lost wages farmworkers should have received between the start of the year and Feb. 23 “to prevent farmworkers from bearing the costs of the Government’s illegal administrative actions.”

According to the plaintiffs, the DOL does not dispute this motion, including the amounts due, its responsibility, or that UFW’s solution is practical. The plaintiffs claimed that wage adjustments should be addressed by the court now rather than after a final judgment. In addition to addressing harm to the farmworkers, UFW claimed that the court resolving this issue now would help growers “who have nothing to gain from prolonged uncertainty about this potential liability.”

This filing is part of an extended effort by UFW to counter new rules published by the USDA and DOL altering their method for gathering and publishing farmworker wage surveys. They claimed in initial filings that the new rules were rushed through and that the government organizations breached the Administrative Procedure Act by neglecting to do the farm labor survey and release AEWRs as current law required and that the missing survey would harm farmworkers.

In UFW’s lawsuit against the USDA regarding the same issue, which also was filed by other organizations, both parties filed a stipulation of dismissal Friday in the same court. The parties agreed that because the USDA conducted the Farm Labor Survey in February, which previously was scheduled for November 2020, and because the USDA’s National Agricultural Statistics Service is planning to begin its next survey in April, the lawsuit is no longer needed.

The United Farm Workers are represented by Farmworker Justice and Wilmer Cutler Pickering Hale and Dorr LLP, and the USDA and DOL are represented by the U.S. Department of Justice.