The U.S. Department of Labor on Feb. 27 announced it would publish a final rule to amend how the adverse effect wage rates for the H-2A program are set to improve the rates’ consistency and accuracy based on the actual work performed by H-2A workers and to better prevent their employment negatively affecting the wages of similarly employed U.S. workers.
The H-2A program allows employers to address temporary labor needs by employing foreign agricultural workers when there is a shortage of U.S. workers to fill such positions, and as long as hiring non-U.S. workers does not adversely affect the wages and working conditions of U.S. workers who hold similar positions. The program’s adverse effect wage rates is the wage below which the Department of Labor determines there would be an adverse effect on the wages of U.S. workers.
To set the adverse effect wage rates, the Department of Labor utilizes the USDA’s Farm Labor Survey (FLS) data for field and livestock workers combined. However, the FLS has not been conducted every year in the recent past. In December 2021, the Department of Labor proposed using the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics survey to set the adverse effect wage rate for agricultural workers when the FLS is not available. At the same time, the department proposed that the adverse effect wage rates for all other H-2A job opportunities, such as when those occupations are not included in the FLS survey, be based on occupation-specific OEWS wage data, the logic being that this will ensure accurate wage rates are offered and paid to workers performing more skilled, higher-paying jobs.
The final rule establishes the following methodology for determining adverse effect wage rates:
- The department will continue to use the average annual hourly wage as reported by the FLS for field and livestock workers, combined, occupations – which represent most agricultural jobs – for the state or region.
- For all other agricultural jobs, not represented adequately or reported by current FLS data, the department will use the statewide or national average annual hourly wages for the occupational classification reported by OEWS program.
- For job opportunities that cover more than one classification, the department will base adverse effect rates on the highest wage for the applicable occupations.