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Department of Labor is Sued Over Improper Approval of Wages for Migrant Farm Workers

Aug. 23, 2018

Department of Labor is Sued Over Improper Approval of Wages for Migrant Farm Workers

U.S. Workers and Farm Worker Union Challenge Department’s Practice of Allowing H-2A Employers to Pay Lower Than Prevailing Wage

WASHINGTON, D.C. – The U.S. Department of Labor has consistently failed to require that employers hiring foreign workers through the H-2A program pay those workers a wage that meets or exceeds the prevailing wage, contrary to its own regulations and the Immigration and Nationality Act, according to a lawsuit filed today in U.S. District Court by Public Citizen.

Public Citizen filed the lawsuit on behalf of four agricultural workers and the Farm Labor Organizing Committee, a farmworker labor union. They were joined by the Texas Riogrande Legal Aid and Advocates for Basic Legal Equality. The suit challenges wage approvals made for workers in Montana, Nebraska, Nevada, North Dakota and South Carolina, as well as the policy the Department of Labor applies nationwide.

The H-2A visa program allows employers to hire foreign workers to perform agricultural labor when there are not enough qualified and available U.S. workers to fill open jobs. Under statute, the Department of Labor is allowed to grant employers certifications to participate in the program only where doing so would not “adversely affect the wages and working conditions” of U.S. workers.

The department’s implementing regulations thus provide that it will grant a certification only when an employer is offering the highest of four wages: the prevailing wage, the “Adverse Effect Wage Rate,” the state or federal minimum wage, or a collective bargaining agreement wage. In practice, however, the department has been ignoring the prevailing wage requirement unless state workforce agencies have independently issued a prevailing wage determination – even though the agency itself has made prevailing wage determinations, published on its own website.

As a result, the department regularly grants certifications to employers who are paying less than the prevailing wage. In some cases, it allows employers to import foreign workers at wage rates of nearly $15 per hour less than the prevailing wage in that location and industry.

By allowing agricultural employers to pay less than the prevailing wage, the Department is harming both U.S. workers and foreign workers, as U.S. workers are denied work opportunities at the wages they deserve, and foreign workers are paid less than they should be as a matter of law.

“Congress enacted the program to provide a way for agricultural employers to fill the positions they need when there is a labor shortage – not to provide a way for employers to pay foreign workers less than they would pay U.S. workers,” said Adam Pulver, the lead Public Citizen Litigation Group attorney representing the plaintiffs. “The agency can’t ignore the law and its own regulations.”