The Biden administration appears to be supporting an effort by the Trump administration to lower H-2A (farmworker) wages, but a federal judge has ruled against both of them.
The case involves how farmworker wages are set in the H-2A program, an intricate process that was altered late in the Trump years to reduce the wages of some farmworkers. The current posture of the Labor Department, now led by career official Al Stewart, whose permanent title is deputy assistant secretary, was to defend the Trump regulation.
The upshot of the Trump rule was to impose a $12/hour wage rate on work that, in the past, had allowed some cherry pickers to make as much as $30 an hour during that harvest, but much less in the rest of the season. They secured the higher level of compensation when they worked on a piece rate, not an hourly one. The tension between hourly rates, which are easier to administer, and piece rates, which are more realistic, has complicated setting what is called the "adverse effect" wage rate for decades. The wage rate is supposed to set at a level that will not "adversely effect" resident workers.
The Department was sued by a non-H-2A worker who competed with them named Ramon Torres Hernandez, apparently a member of Familas Unidas Por La Justicia, an AFL-CIO union. Federal District Court Judge Salvador Mendoza Jr. granted a preliminary injunction that largely restored the older, more generous wage level.
So why, during the Biden administration, does the Department of Labor (where I worked on farm labor issues more than half a century ago) seem to support an effort to lower wages for both alien and (indirectly) citizen farmworkers?
We have three possible answers:
- It was largely an accident, with the career types having no guidance from a not-yet- confirmed secretary of Labor;
- It was a witting event, in which DOL attorneys expected a defeat in court anyway; or
- The Department deliberately took the anti-worker position.
I think the first alternative is much more likely than the others, and second is more likely than the third.
When I was with the department, the secretary, the late W. Willard Wirtz, loved it when it was sued from the left. Then he, a skilled attorney, would work out a settlement with the pro-labor lawyers, sometimes one that he regarded as much better than he could expect from the judge in the case. (The Hernandez case was closed by a judge's ruling, not a settlement.)
I reported on the new rule back in October of last year, saying that the decision "could not be anything but bad news for the H-2A farmworkers and the U.S. workers with whom they compete."
The case is Ramon Torres Hernandez and Familias Unidas por la Justicia v. Al Stewart, in his official capacity as Acting U.S. Secretary of Labor; its PACER number is 1:20-cv-03241-SMJ; it is in the Eastern District of Washington, and was reported on by Law360.