Public Citizen News / May-June 2019
By Mike Stankiewicz
This article appeared in the May/June 2019 edition of Public Citizen News. Download the full edition here.
Thanks in part to Public Citizen’s legal intervention, migrant farmworkers will receive their government-mandated minimum wage, after fighting off a legal challenge by employer growers. The outcome marks a win for both domestic and foreign workers.
The U.S. District Court for the District of Columbia on March 18 dismissed a lawsuit filed by growers seeking to throw out wage rates set by the U.S. Department of Labor (DOL) for farmworkers employed by growers that use the H-2A agricultural guestworker program.
The growers’ lawsuit against DOL was an effort to invalidate the longstanding methodology for setting the Adverse Effect Wage Rate (AEWR), which is the minimum hourly rate that employers using the H-2A program to bring foreign workers to the U.S. to fill temporary agricultural jobs must offer to both foreign and U.S. workers. Three South Texas farmworkers, represented by Public Citizen and Texas RioGrande Legal Aid, intervened on the side of the government to defend the methodology for setting the AEWR.
“Public Citizen has been vigilant in making sure that the Department of Labor follows the law,” said Michael Kirkpatrick, a Public Citizen attorney. “We intervened to make sure the agency defended the wage rates and protected farmworker wages.”
Under the 2019 rates, H-2A workers will earn a combined total of at least $123 million more than they would have without the new rates. These rates protect both foreign and domestic workers; with them in place, growers cannot undercut the wages of U.S. workers by hiring H-2A workers for lower wages.
The growers’ suit to stop implementation of the 2019 rates was filed on Jan. 7. Because DOL sets the rates annually for each state based on a formula that has been in place since 2010, the court found that the growers were in reality challenging the regulation that established the methodology for determining the AEWR. Therefore, the court held, the growers’ challenge was barred by the statute of limitations.
“We are pleased that the court accepted our arguments and ruled in our favor on the timing issue. We are also confident that we would have prevailed on our merits arguments, had the court reached them,” Kirkpatrick said.