Judge declines to block new federal farm labor wage rule | Eastern North Carolina Now

A federal judge has rejected a Waynesville-based company's request to block a new federal rule linked to farm worker wages.

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    A federal judge has denied a Waynesville-based company's request to block a federal rule change related to farm worker wages. The company argues the change could increase its costs by hundreds of thousands of dollars per year.

    US District Judge Martin Reidinger issued an order Tuesday denying USA Farm Labor and other plaintiffs' motion for a temporary restraining order and preliminary injunction. Reidinger determined that opponents were unlikely to win their challenge against the US Department of Labor's rule change.

    Yet Reidinger rejected the Labor Department's motion to dismiss the case. Plaintiffs can proceed with a standard federal court timeline.

    "The Court ... finds and concludes that the Plaintiffs have failed to demonstrate a likelihood of success on the merits, have failed to show irreparable harm should preliminary relief not be granted, and have failed to show that the balance of equities and the public interest tips in their favor," Reidinger wrote.


    USA Farm Labor and 11 other plaintiffs filed suit in April. Amended complaints have boosted the total number of plaintiffs to 24. The other plaintiffs are farms and agribusinesses located across the country.

    They are challenging a rule published in February that changes the way the Labor Department will calculate its adverse effect wage rate for the H-2A agricultural worker visa program. It "allows U.S. agricultural employers to hire foreign workers to perform temporary agricultural labor or services," Reidinger explained.

    The adverse wage rate is designed to ensure that domestic workers face no harm from the influx of foreign workers. The federal government prohibits H-2A employers from paying either foreign or domestic workers less than the government-determined wage.

    After a federal court threw out a 2020 rule that would set occupation-based adverse wage rates, the Labor Department tried again. Its latest plan generated the lawsuit led by Waynesville-based USA Farm Labor, "an H-2A agent that submits over eight hundred H-2A applications annually, most of which cover multiple workers, on behalf of farms and agri-businesses throughout the nation," Reidinger wrote.

    The judge rejected the plaintiffs' argument that Labor Department calculations should not have included jobs outside of agricultural work, such as truck drivers.

    "The Plaintiffs argue that the agency's chosen method of calculating the AEWR is unreasonable and contrary to the statute because, although the statute 'does not provide a formula for calculating AEWRs, it still limits the DOL to protecting the wages of agricultural workers,'" Reidinger wrote. "Even if the DOL were limited to considering only the interests of similarly employed agricultural workers, the Agency explained that it determined that in order to prevent wage depression for agricultural workers it is necessary to consider some nonagricultural wages."

    "The Plaintiffs' contention that it would be more protective of agricultural workers to consider only agricultural wages is a policy disagreement with the Agency, not a meaningful argument that the Agency's construction is unreasonable or otherwise impermissible," Reidinger explained.


    "[I]t appears that the Agency, in its discretion, determined that failing to consider the wages of employees working outside of the agricultural industry - or within the industry and simply not captured by the [Farm Labor Survey] because they work for contractors - depressed the wages of workers in some occupations," the judge added. "As it is mandated to prevent adverse effects on domestic workers, the Agency adopted the Final Rule to counter this wage depression."

    Reidinger also rejected plaintiffs' arguments that the rule is "arbitrary and capricious" and that the Labor Department failed to account for the rule's potential cost. "The Final Rule also included an analysis of the ten-year cost of the rule and estimated an increased average transfer of $37.5 million from employers to workers under the rule," he wrote.

    "The Plaintiffs have not shown that the DOL was willfully blind to what data would be needed or failed to diligently pursue the information on which one would rationally base such a Determination," the judge added. "Rather, the Plaintiffs apparently seem to disagree with the DOL's conclusion that any unaccounted-for cost would be de minimis," a legal term meaning lacking significance or importance.

    The order rejects plaintiffs' arguments that the Labor Department rule could boost illegal immigration and hurt the food supply. Reidinger also weighed the plaintiffs' claims that they would suffer irreparable harm.


    "Here, while the Plaintiffs have made at least a preliminary showing of irreparable harm, the Plaintiffs have failed to demonstrate a likelihood of success on the merits," he wrote. "They have further failed to show that the threatened irreparable injury outweighs the threatened harm that a preliminary injunction would cause parties who are not represented in this action, such H-2A and corresponding U.S. workers who would benefit from the 2023 Final Rule."

    "The requested injunction could cause at least as much harm to these third-party workers, who would be deprived of wages that they are entitled to under the Final Rule, as a denial would harm the Plaintiffs, who would potentially avoid having to pay these wages," Reidinger explained. "The requested injunction also would inject a degree of uncertainty into the H-2A program because employers using the program would be uncertain about how much they will owe workers if DOL ultimately prevails in this action."
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