923 F.2d 182 (D.C. Cir. 1991), 90-5285, American Federation of Labor and Congress of Indus. Organizations (AFL-CIO) v. Dole

Docket Nº:90-5285, 90-5287 and 90-5289.
Citation:923 F.2d 182
Party Name:AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS (AFL-CIO), et al. v. Elizabeth H. DOLE, Secretary of Labor, et al. National Council of Agricultural Employers, Appellants. AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS (AFL-CIO), et al. v. Elizabeth H. DOLE, Secretary of Labor, et al., Appellants, Nationa
Case Date:January 11, 1991
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 182

923 F.2d 182 (D.C. Cir. 1991)

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS (AFL-CIO), et al.

v.

Elizabeth H. DOLE, Secretary of Labor, et al.

National Council of Agricultural Employers, Appellants.

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS (AFL-CIO), et al.

v.

Elizabeth H. DOLE, Secretary of Labor, et al., Appellants,

National Council of Agricultural Employers.

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS (AFL-CIO), et al.

v.

Elizabeth H. DOLE, Secretary of Labor, et al.

American Farm Bureau Federation, Appellant.

Nos. 90-5285, 90-5287 and 90-5289.

United States Court of Appeals, District of Columbia Circuit.

January 11, 1991

Argued Nov. 21, 1990.

Page 183

Appeals from the United States District Court for the District of Columbia.

Drake S. Cutini, Attorney, Dept. of Labor, of the Bar of the Supreme Court of Kentucky, pro hac vice, by special leave of the Court, with whom Harry L. Sheinfeld, Atty., Dept. of Labor, Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Michael Jay Singer and John S. Koppel, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellants Elizabeth H. Dole, Secretary, Dept. of Labor, et al.

John M. Simpson, with whom Robert A. Burgoyne, Washington, D.C., was on the brief, for appellant Nat. Council of Agr. Employers.

Kathryn A. Oberly, Michael F. Rosenblum and Patricia A. McCoy, Washington, D.C., were on the brief, for appellant American Farm Bureau Federation.

Shelley Davis, with whom Garry G. Geffert and David M. Silberman, Washington, D.C., were on the brief, for appellees.

Before RUTH BADER GINSBURG, SILBERMAN, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

We consider for the second time the Department of Labor's new methodology for computing the adverse effect wage rate ("AEWR"), which is the minimum wage that employers who wish to hire aliens as temporary agricultural workers must offer American and foreign workers. The Department appeals the district court judgment rejecting its final rule adopting this new methodology. Because we find that the Department has adequately explained its change in regulatory policy and that its new policy is within statutory authorization, we reverse.

I.

Although the Department had, under the Immigration and Naturalization Act of 1952 ("INA"), long issued regulations which set forth the minimum wage at which foreign agricultural workers could be employed, after the passage of the Im

Page 184

migration Reform and Control Act of 1986 ("IRCA"), the Department took a new tack. It ended its policy of enhancing the minimum wage to compensate for past wage depression, choosing instead to base the minimum wage rate on the previous year's average hourly agricultural wage. The AFL-CIO and other farmworker representatives ("appellees" or "farmworkers") challenged the new regulations, which reduced the minimum wage by an average of 20 percent from that calculated under the old method, as failing to carry out the Department's statutory mandate under IRCA of ensuring that domestic wages are not "adversely affected" by foreign labor. 8 U.S.C. Sec. 1188(a) (1988).

Under INA, the Department established the AEWR--a minimum wage that all employers who wished to import alien workers must first offer to qualified U.S. workers, and then, if the job remained unfilled, to foreign workers. See 8 C.F.R. Sec. 214(2)(h)(3) (1986). The methodology used to compute the AEWR was designed to offset both future and past adverse effect from the addition of legal and illegal foreign labor to the U.S. labor supply. 1 The wage floor is obviously designed to prevent cheaper foreign labor from undercutting domestic wages in the future. By adding a factor calculated to offset the supposed degree to which past legal and illegal additions to the work force had depressed agricultural wages, DOL also intended that the AEWR "compensate" domestic farmworkers for what might be thought to be past failures to protect the wage scale.

Congress expressly incorporated the prior regulatory requirement that employing foreign workers would not "adversely affect the wages and working conditions of workers in the United States similarly employed," 8 C.F.R. Sec. 214(2)(h)(3) (1986), as part of IRCA's amendments of INA governing temporary foreign worker (or H-2A) visas. See 8 U.S.C. Sec. 1188(a). 2 Congress did not, however, further define adverse effect and left it in the Department's discretion how to ensure that the importation of farmworkers met the statutory requirements. The Department chose to protect domestic workers' interests, as it had done under INA, through its longstanding AEWR program, but it modified the program in light of IRCA. 3

Since IRCA was primarily designed to reduce illegal immigration, the Department thought it would be necessary and appropriate to ease temporary legal entry. Accordingly, it adopted a new, simpler...

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