In amicus brief, Tom Perez, Robert Reich, Hilda Solis, Julie Su, and Marty Walsh lend support to legal challenge to new rule
A new Trump Administration rule regarding the Adverse Effect Wage Rates for workers with H-2A visas and the U.S. workers who work alongside them is slashing wages for U.S. and H-2A farmworkers alike and was adopted unlawfully, according to five former U.S. Secretaries of Labor. An amicus curiae in UFW v. DOL – filed today by fair food system advocacy group FarmSTAND and signed onto by former secretaries Tom Perez, Robert Reich, Hilda Solis, Julie Su, and Marty Walsh – lays out a wide variety of reasons a federal court should invalidate the new DOL rule. It argues that the new rule inconsistently and incoherently employs different kinds of averages as the basis for the new AEWRs, that DOL failed to consider obvious alternatives to slashing H-2A workers’ wages by applying a ‘housing deduction,’ and that DOL skipped the notice-and-comment process for the rule without good cause. The former secretaries signing onto this amicus brief are doing so in their personal capacities.
The H-2A visa program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. The Department of Labor is bound by law to protect U.S. workers from adverse effects on their wages or working conditions resulting from hiring foreign workers, and so requires employers of H-2A workers to pay both those workers and the U.S. workers who labor alongside them the same wage. It has calculated the Adverse Effect Wage Rate in a mostly consistent and reasonable manner – tied to the average wages for all farmworkers – since the modern H-2A program was established by Congress in 1986.
The Trump DOL’s new rule splits workers earning the AEWR into two classes for the first time. This unprecedented change, the brief explains, is guaranteed to drive down pay for both H-2A and U.S farmworkers. “Allowing growers to pay H-2A workers below-average wages would systematically incentivize growers to hire foreign workers over their U.S. counterparts. It would also undercut the bargaining power of U.S. farmworkers to seek better wages and working conditions,” according to the amicus brief filed today.
“The responsibility and commitment of the U.S. Department of Labor is to protect the pay, rights, and wellbeing of the American workforce,” said Hilda Solis, former Secretary of Labor under President Obama. “As the first Latina to serve on a Presidential Cabinet, I have long stood by farmworkers and our agricultural workers. I am deeply concerned at this federal administration’s dedication to driving down wages and harming the backbone of our economy across the nation. I would urge the court to do what is right and stand with workers’ rights to strike down this unlawful rule.”
Today’s amicus brief is filed in the UFW v. DOL case, a legal challenge to the AEWR changes brought by plaintiff groups the United Farm Workers and the UFW Foundation, along with individual H-2A and U.S. farmworkers.
“The Trump Administration’s interim final rule is unlawful and harmful to farmworkers and rural communities,” said Nathan Leys, FarmSTAND Staff Attorney. “That former Secretaries of Labor are coming out against this rule underlines just how egregiously the Trump Administration overstepped.”