FRESNO, Calif. (CN) — The nation’s largest farmworkers union urged a federal judge in California Monday to halt a pending wage freeze for immigrant workers, arguing the Trump administration rushed the contentious plan that could save farmers a combined $167 million annually in labor costs.
In a last-minute attempt to prevent the freeze from taking effect on Dec. 21, California-based United Farm Workers accused the feds in virtual oral arguments of “catching everyone off guard” with the rule change that stands to cut the average worker’s pay by 4% over the next two years. The union blasted the Trump administration for rewriting a law intended to protect workers and turning it into a boon for employers.
“The Department of Labor has constructed a manner of calculating adverse effect wages that is deliberately not tied to actual market wages and produces significantly lower wages for farmworkers unrelated to market conditions,” said the union’s attorney Mark Selwyn.
The new rule published by the Labor Department last month locks in at 2019 levels the minimum wage employers must pay foreign agricultural workers with H-2A visas, known as the adverse effect wage rate. The move came less than two months after the administration broke with tradition and announced it would no longer use Farm Labor Surveys when determining the minimum wage states must pay foreign farmworkers.
While the union wants the freeze tossed out entirely, it’s currently trying to persuade U.S. District Judge Dale Drozd to bar the implementation next week and maintain the status quo while the lawsuit plays out. It claims the rule directly violates the heart of the adverse effect wage rate: safeguarding farmworkers from unreasonable pay cuts.
Beginning in 2023, the Labor Department will tie future wage increases to the generic employment cost index instead of relying on the survey, causing wages to rise at an even slower rate. During his time in office, U.S. Secretary of Agriculture Sonny Perdue has advocated for lowering the adverse effect wage rate that largely determines how much farmworkers get paid state-by-state.
In defense of the rule Perdue claims will provide farmers with “greater stability,” the administration’s lawyers argued the union and the greater public had plenty of notice about the upcoming shift from the Farm Labor Survey.
Department of Justice attorney Michael Gaffney downplayed the change, saying it would actually prevent the pay decreases farmworkers experienced in over a dozen states between 2017-2019, and that it would benefit higher-skilled workers like supervisors and truck drivers.
“I don’t think this is an example of swinging to one extreme or another,” Gaffney said.
Gaffney countered that a preliminary injunction delaying next week’s rule change could cause farmworkers harm by forcing the Labor Department to establish 2021 adverse effect wages without the benefit of a completed labor survey.
Drozd noted the hypocrisy in Gaffney’s argument, pointing out that the Trump administration voluntarily decided to abruptly nix the survey and eschew the critical data collected from over 35,000 U.S. farms and ranches.
During the more than 90-minute hearing, the Obama appointee directed most of his questions to the defendants, appearing to agree with the union that the administration didn’t consider the scope of the pay cuts or explain the rationale for the change.
“The number is so staggering it’s hard to imagine there’s not an adverse effect,” Drozd said of the estimated $1.6 billion farmworkers could lose over the next two years.
Last month in a separate but related case, Drozd sided with the union and ordered the feds to resume the labor survey. On Monday he didn’t commit to a timeline for his decision on the union’s motion but hinted it would come next week.
The plaintiffs capped the hearing by noting the Trump administration is wholly to blame for the missing data typically published each November.
“This is a situation of the government’s own making and farmworkers should not be made to suffer for it,” Selwyn said.
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