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Farm Labor Survey nixed

An ag labor specialist says a fix to H-2A wage rates isn’t expected anytime soon.

Michigan State University’s Zach Rutledge expects a legal challenge to USDA’s elimination of the Farm Labor Survey based on its actions in 2020.

“And a judge ordered that they continue to collect the data, so I imagine there’s going to be additional legal challenges to this rule that they’re changing,” he says. “We still have to wait for this to be litigated, and I’m fairly confident there will be litigation.”

The United Farm Workers, UFW Foundation, and Farmworker Justice won a challenge against the Department of Labor that its rule to freeze adverse effect wage rates and phase out the labor survey violated the Administrative Procedure Act.

For more than a century, the survey has asked farmers about worker pay, and since the late 1980s, results have been used to help set rates for H-2A guest workers.

“Those wages have changed erratically for some regions from year to year, and industry groups have raised a lot of concern about those wages, especially when they rise by, you know, 15 percent or $2.00 an hour per year,” he explains

USDA says the survey is no longer necessary through the Paperwork Reduction Act, but rather it will use data from the Department of Labor.

The Occupational Employment and Wage Statistics Program surveys crop support service providers like farm labor contractors, and has been used as a substitute in some states where FLS data isn’t available.

A recent court decision repealed a DOL rule to use a combination of both surveys to calculate the federally managed wages. A day before the USDA’s announcement, the DOL said it would revert to previous regulations that use the farm labor survey in its determinations.  

Rutledge tells Brownfield it’s unknown if the wages will be frozen moving forward or if there will be an immediate switch to other data sources.

The DOL plans to announce an updated methodology for determining H-2A worker wages next spring.