DOL Issues New Rules on H-2A Wages

WASHINGTON, D.C. - On Friday October 6, 2020,  the U.S. Department of Labor (DOL) and Department of Agriculture (USDA) officials announced new rules on H-2A Adverse Effect Wage Rates (AEWR).  The details are in the attached pre-publication copy of the rule, and the attached FAQ.  A few toplines, as we understand the rule, are as follows:

• For job classifications encompassed within the “field and livestock workers, combined” category (the significant majority of workers), the DOL has concluded that the FY2020 AEWRs are sufficient to be extended through FY2022 (essentially, a two-year freeze) followed by the first Employment Cost Index (ECI)-based adjustment to that wage. 

• After that time, for those classifications, the AEWRs will be annually adjusted based on the annual change in the Employment Cost Index-Wages & Salaries, a broad statistical measure of the cost of labor in the overall economy.  The ECI over time has tended to increase annually in the 2.5 to 3 percent range.  For the fiscal year that just ended September 30, the ECI increased 2.5%. 

• For certain job classifications outside of the “field and livestock workers, combined” category (such as construction- and trucking-related, and perhaps supervisors), wages will be determined from the BLS Occupational Employment Statistics database. 

• In those cases where a worker’s job description crosses lines among the categories outside of the broad “field and livestock” category, the highest applicable wage will be assigned.More detail in the attached. 

The big unknowns moving forward include:  Will there be litigation? How efficacious will that litigation be? What will the results of the election mean for the future fate and implementation of the rule? And of course, will Congress step in and do something different?