OFLC Announces Updates to Implementation of the H-2A Adverse Effect Wage Rate Methodology for Non-Range Occupations Interim Final Rule; Compliance with District Court Order

Official excerpt

This notice is provided to comply with the August 26, 2026 Order of the United States District Court for the Eastern District of California entered in United Farm Workers, et al. v. DOL, et al., No. 25-cv-01614-KES-EGC ("Order"), requiring the U.S. Department of Labor (the "Department") to provide public notice that certain employers may be required to make back wage adjustment payments. The Department is complying with the Court's Order by providing this notice. The Department's compliance with the Order shall not be construed to waive its rights to seek further review of and relief from the Order. Nor shall the Department's compliance be construed as an admission that a Court has the authority under law to compel DOL or employers to cause back wage adjustments for the reasons set forth in the Court's Order. Congress charged the Department with administering the H-2A program. In doing so, the Department is obligated to "balance the competing goals of the statute—providing an adequate labor supply and protecting the jobs of domestic workers." AFL-CIO v. Dole, 923 F.2d 182, 187 (D.C. Cir. 1991). In carrying out that responsibility, courts have recognized that the Department has broad discretion to determine the appropriate methodology for establishing the Adverse Effect Wage Rate ("AEWR"). As one court explained, the "choice of [AEWR] methodology" for achieving those twin aims "is really a policy decision taken within the bounds of a rather broad congressional delegation" to the Department. Kansas, et al. v. U.S. Department of Labor, 749 F. Supp. 3d 1363, 1374 (S.D. Ga. 2024) (quoting Dole, 923 F.2d at 187).

Dated agency announcement. Any referenced implementing rule or court order must be checked separately; this page does not establish its current legal effect.

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