Texas-Based Farmworkers Sue to Stop Trump Administration's Attempt to Lower Wages

DEC. 15, 2020

Contacts: Robert Elder, TRLA Communications Director | relder@trla.org, (512) 374-2764 

Elizabeth Leiserson, Skadden Fellow, TRLA | eleiserson@trla.org (615) 538-0678 

WASHINGTON, D.C. – Four farmworkers from the Rio Grande Valley have sued the U.S. Department of Labor to stop the soon-to-expire Trump Administration from lowering wages for farmworkers nationwide. 

Texas RioGrande Legal Aid and Public Citizen sued Labor Secretary Eugene Scalia Dec. 10 in U.S. District Court for the District of Columbia to stop a new rule from going into effect Dec. 21. If it takes effect, the Labor Department acknowledges the rule would cost farmworkers in the U.S. on H-2A visas as much as $1.68 billion in lost wages over the next decade. 

The H-2A program allows agricultural employers to hire workers from other countries on temporary work permits when they cannot fill the positions with U.S. workers. 

However, under the visa program, employers can't hire H-2A workers unless the Labor Secretary certifies that the hiring won't depress wages of U.S. farmworkers, like the four plaintiffs. Two of the plaintiffs are from McAllen, one from Mercedes, and one from Weslaco. 

"Any rule change that makes it cheaper for growers to bring in temporary foreign workers makes it harder for all farmworkers to make ends meet," said Elizabeth Leiserson, an attorney with Southern Migrant Legal Services who is representing the farmworkers. "When growers can pay lower wages to H-2A workers, that means U.S. workers can't negotiate for higher pay. Their bosses can decide they'd rather bring in H-2A workers for less money." 

Southern Migrant Legal Services is a project of TRLA. 

The rule, which the Labor Department proposed in November, changes the way a particular agricultural minimum wage for the H-2A program, called the Adverse Effect Wage Rate (AEWR), is calculated. 

Under the new rule, that wage will be frozen for two years and then adjusted annually based on changes in an employment index that doesn't include farm wages. Previously, the Labor Department set the wage every year based on a nationwide survey of farm wages. 

"The two-year freeze is particularly insidious," Leiserson said. "The AEWR has been increasing in most states for several years because farm wages are going up around the country. Under this new rule, even after wage freeze ends, H-2A workers' wages will be depressed because they will be based on an artificially low baseline." 

The complaint alleges that the Labor Department didn't give proper notice of how it would change the wage rate and failed to ensure that the lower wages wouldn't harm U.S. workers like the plaintiffs.

Former TRLA attorney Edward Tuddenham also represents the farmworker plaintiffs.

A separate federal court challenge to this rule is pending in U.S. District Court in Fresno, Calif. Farmworker Justice and the international law firm WilmerHale filed the challenge on behalf of the United Farm Workers and the UFW Foundation. 

Texas RioGrande Legal Aid provides free legal services to people who cannot afford an attorney in 68 southwestern counties, including the entire Texas-Mexico border. TRLA attorneys specialize in more than 45 areas of the law, including disaster assistance, family, employment, foreclosure, bankruptcy, landlord-tenant, housing, education, immigration, farmworker, and civil rights. Our hotline is open from 9:00 a.m. – 5:00 p.m. (CST) Monday – Friday: (956) 996-8752.