United Farm Workers v. U.S. Dep't of Labor, No. 1:20-cv-01690-DAD-JLT

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtDale A. Drozd, UNITED STATES DISTRICT JUDGE
Citation509 F.Supp.3d 1225
Parties UNITED FARM WORKERS, et al., Plaintiffs, v. The UNITED STATES DEPARTMENT OF LABOR, et al., Defendants.
Docket NumberNo. 1:20-cv-01690-DAD-JLT
Decision Date23 December 2020

509 F.Supp.3d 1225

UNITED FARM WORKERS, et al., Plaintiffs,
v.
The UNITED STATES DEPARTMENT OF LABOR, et al., Defendants.

No. 1:20-cv-01690-DAD-JLT

United States District Court, E.D. California.

Signed December 23, 2020


509 F.Supp.3d 1230

Bruce Goldstein, Phv, Pro Hac Vice, Gabriela Hybel, Phv, Pro Hac Vice, Iris Figueroa, Phv, Pro Hac Vice, Trent R. Taylor, Phv, Pro Hac Vice, Farmworker Justice, Derek Woodman, Phv, Pro Hac Vice, Gregory H. Lantier, Phv, Pro Hac Vice, Tico A. Almeida, Phv, Pro Hac Vice, Rachel Jacobson, Phv, Pro Hac Vice, Wilmer Cutler Pickering Hale And Dorr LLP, Washington, DC, Nicholas R. Werle, Phv, Pro Hac Vice, Wilmer Cutler Pickering Hale & Dorr LLP, New York, NY, Phillip R. Takhar, Phv, Pro Hac Vice, Wilmer Cutler Pickering Hale & Dorr LLP, Denver, CO, Mark D. Selwyn, Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, CA, for Plaintiffs.

Michael James Gaffney, Govt, U.S. Depart. of Justice, Civil Division, Federal Programs, Washington, DC, for Defendants.

ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Dale A. Drozd, UNITED STATES DISTRICT JUDGE

This matter came before the court on December 14, 2020 for hearing on the motion for a preliminary injunction on behalf of plaintiffs United Farm Workers and UFW Foundation (collectively, "plaintiffs"). (Doc. No. 5.) Attorneys Mark Selwyn, Derek Woodman, Nicholas Werle, Bruce Goldstein, Trent Taylor, and Gabriela Hybel appeared by video for plaintiffs, and United States Department of Justice Trial Attorney Michael Gaffney appeared by video for defendants the United States Department of Labor ("DOL") and Eugene Scalia, the Secretary of Labor (collectively, "defendants"). For the reasons explained below, the court will grant plaintiffs’ motion for a preliminary injunction.

BACKGROUND

In their complaint, plaintiffs allege the following. Of the two to three million farmworkers currently in the United States, over 200,000 are H-2A foreign guestworkers. (Doc. No. 1 ("Compl.") at ¶ 24.) The H-2A agricultural guestworker program permits agricultural employers to hire foreign workers on a temporary basis under certain circumstances. (Id. at ¶ 17.) The H-2A program is rooted in the Immigration and Nationality Act of 1952 ("INA"), which created a broad class of non-immigrant

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"H" visas for temporary admission of foreign workers to provide temporary or seasonal labor in sectors of the economy where there are shortages of U.S. workers. (Id. at ¶ 32.) The INA was later amended to establish the separate H-2A visa classification for agricultural labor. (Id. ) As amended, the INA prohibits the United States Department of Homeland Security from issuing an H-2A visa unless the employer seeking to hire foreign guestworkers has applied for and received a certification from the DOL that: (a) "there are not sufficient workers who are able, willing, and qualified" and available to perform the sought for services, and (b) the foreign workers’ temporary employment "will not adversely affect the wages and working conditions of workers in the United States similarly employed." (Id. at ¶ 32.) This certification requirement furthers the INA's purpose of protecting U.S. workers from the potential adverse effects of an influx of guestworkers in that certification prohibits agricultural employers from hiring foreign guestworkers unless they have shown that the U.S. labor market cannot supply the required workers, and then requires that this supplemental, foreign labor supply not harm U.S. farmworkers’ wages and working conditions. (Id. at ¶ 33.)

To prevent adverse effects on U.S. workers, the DOL's regulations require that employers utilizing the H-2A program pay a wage that is the highest of either: (1) the Adverse Effect Wage Rate ("AEWR"), (2) the prevailing wage rate, (3) an agreed-upon collective bargaining wage, or (4) the federal or state minimum wage. (Id. at ¶ 35.) Under those regulations, the DOL relies primarily on a two-pronged approach based on the AEWR and prevailing wage rate to guard against wage depression that would otherwise result from the hiring of high numbers of foreign agricultural workers. (Id. ) The prevailing wage rate protects local wages paid, while the AEWR sets a state-wide wage floor to prevent wage disparities over larger geographic areas. (Id. at ¶ 36.) The AEWR, however, is the primary wage rate under the H-2A program because it is higher than the other wages in most circumstances. (Id. ) As a result, the AEWR determines the wages of approximately 92 percent of the farmworkers working for H-2A program employers. (Id. )

Prior to December 21, 2020, the DOL's regulations required the DOL to use the United States Department of Agriculture's ("USDA") Agricultural Labor Survey, commonly referred to as the Farm Labor Survey ("FLS"), in order to calculate the AEWR. (Id. at ¶ 37.) The USDA has conducted the FLS since 1910. (Id. at ¶ 52.) The FLS collects information from farm employers to obtain data on farm employment, hours worked, wages paid, and other statistics. (Id. ) The National Agricultural Statistics Service ("NASS")—the USDA's statistical branch—publishes FLS data semiannually in May and November in the Farm Labor Report ("FLR"). The May report includes employment and wage estimates based on January and April reference weeks, and the November report includes estimates based on July and October reference weeks. (Id. at ¶ 53.) The November report also provides annual data based on quarterly estimates. (Id. )

Aside from a brief two-year period starting in 2008, the DOL's regulations required it to use the FLS to calculate the AEWR for the H-2A program since the program's inception in 1986. (Id. at ¶ 37.) The DOL had also used FLS data for the H-2A's predecessor program since 1953. (Id. ) Because of the DOL's longstanding reliance on the FLS, the USDA has conducted the FLS in cooperation with the DOL, and the DOL has funded the FLS since July 2011 pursuant to a memorandum of understanding between the two

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agencies. (Id. ) Indeed, in a December 2019 memorandum of understanding between the DOL and the USDA, the DOL agreed to continue funding the FLS through December 31, 2022. (Id. at ¶ 56.)

Under the DOL's prior regulations, which were adopted in 2010, the DOL sets an AEWR for each state or multi-state region using "[t]he annual weighted average hourly wage for field and livestock workers (combined) ... as published annually by the U.S. Department of Agriculture ... based on its quarterly wage survey," the FLS. (Id. at ¶ 38); see also Temporary Agricultural Employment of H-2A Aliens in the United States , 75 Fed. Reg. 6,884 (Feb. 12, 2010) ("the 2010 Rule"). That 2010 Rule explained that the AEWR seeks to approximate the market wages that would exist absent an influx of foreign workers, thus "put[ting] incumbent farm workers in the position they would have been in but for the H-2A program." (Compl. at ¶ 39.) The DOL elucidated that the AEWR was premised on the idea that "an increase of workers under the H-2A program" would prevent wages from "increas[ing] by an amount sufficient to attract more [U.S.] workers until supply and demand were met in equilibrium." ( Id. ) In other words, "the AEWR avoids adverse effects on currently employed workers by preventing wages from stagnating at the local prevailing wage rate when they would have otherwise risen to a higher equilibrium level over time." ( Id. ) The DOL has recognized that without the protections afforded by AEWRs set at regional or state-wide market rates, farmworkers "would be adversely affected by lowered wages as a result of an influx of temporary foreign farm workers." ( Id. )

In adopting the 2010 Rule, the DOL also concluded that the FLS was the best available data source for establishing AEWRs. (Id. at ¶ 40.) The DOL explained at that time that "[t]he FLS is the only annually available data source that actually uses information sourced directly from [farm employers]," which "is a strong advantage of the FLS as the AEWR data source compared to all other alternatives." ( Id. ) Additionally, the FLS's "broader geographic scope makes the FLS more consistent with both the nature of agricultural employment and the statutory intent of the H-2A program." ( Id. ) In short, FLS data was best suited to protect against adverse effects because it allowed the DOL to establish AEWRs at regional market rates. ( Id. ) Conversely, the DOL recognized that using data other than the FLS to calculate AEWRs—in that case, the DOL's Occupational Employment Statistics ("OES") survey data—"entails a significant risk that U.S. workers may in the future experience wage depression as a result of unchecked expansion of the demand for foreign workers." ( Id. )

On July 26, 2019, the DOL published a Notice of Proposed Rulemaking ("NPRM") proposing to continue its reliance on FLS data to establish AEWRs under the H-2A program. (Id. at ¶ 43); see also Temporary Agricultural Employment of H-2A Nonimmigrants in the United States , 84 Fed. Reg. 36,168 (July 26, 2019) ("the NPRM"). Specifically, the NPRM proposed to establish separate AEWRs for distinct agricultural occupations within each state or region relying on FLS data. (Id. at ¶ 44.) If the FLS did not report a wage for a specific occupation in a given state or region, the...

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