A changing labor landscape for horticulture
Several recent decisions affecting ag labor have industry insiders cautiously optimistic that the political landscape may be favorable for long-lasting reform.
In early September, the USDA announced it was discontinuing a method of measuring farm wages dating to the 19th century. In a Sept. 3 notice to the Federal Register, the National Agriculture Statistics Network (NASS) said the Agricultural Labor Survey (or Farm Labor Survey) was not designed to reflect the current state of agriculture or labor.
That came on the heels of a federal court decision vacating the Department of Labor (DOL)’s 2023 Adverse Effect Wage Rate (AEWR) Methodology rule, which followed the June suspension of a contested measure that extended protections to H-2A guest workers who organize to form labor unions.
Agricultural organizations including the National Potato Council (NPC), the National Council of Agricultural Employers (NCAE) and the Georgia Fruit & Vegetable Association greeted the recent court actions with applause.
“We continue to push for comprehensive ag labor reform,” Mike Wenkel, NPC chief operating officer, told Great American Media Services in a Sept. 10 interview.
AEWR CALCULATION DEBATE
On Aug. 27, a federal court in Louisiana vacated a 2023 DOL rule that based the H-2A program’s AEWR on the Occupational Employment and Wage Statistics (OEWS) survey in addition to the Farm Labor Survey (FLS), applying permanent, non- agricultural wage data to seasonal agricultural jobs and subjecting growers to periodic wage increases.
In response to that ruling, DOL said it would revert to a 2010 regulation that defaulted to the FLS for establishing wage rates. On Aug. 29, USDA filed a notice in the Federal Register of its intent to discontinue the FLS, saying it was outdated.
In the Sept. 3 notice, NASS said improvements to the DOL’s Bureau of Labor Statistics Occupational Employment and Wage Statistics (OEWS) program “make OEWS the superior barometer for measuring farm wages.”
The FLS collected information from farmers and not farm labor contractors — data that is instead collected by OEWS, USDA said. The agency said that, given the shortage of domestic labor and the complex process to navigate visa programs for foreign workers, more and more farmers rely on farm labor contractors to supply their workforce.
Industry groups also argued the DOL’s reliance on FLS results allowed wages for foreign farmworkers under the H-2A guest worker program to outpace those for domestic food producers.
“The belief is that it created a false wage rate within agriculture,” Wenkel said. “The question for the near future is, what’s going to be used to determine that Adverse Effect Wage Rate? In its fiscal year 2026 appropriations bill, the House Appropriations Committee advanced a provision that would freeze the AEWR for H-2A workers at 2023 levels for two years.
WORKER PROTECTION WRANGLING
On June 20, DOL’s Wage and Hour Division suspended a worker protection rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States,” enjoined nationwide by a court ruling since December 2024. DOL cited “significant legal uncertainty, inconsistency and operational challenges for farmers lawfully employing H-2A workers.”
Opponents argued that the rule, which also aimed to shield guest workers from wage theft and trafficking, permitted government overreach, while a federal judge found that it violated the National Labor Relations Act, which excludes farmworkers from collective bargaining rights.
NPC CEO Kam Quarles applauded the rule’s rescission along with the wage rule rollbacks but cautioned the moves are “temporary fixes,” with “a comprehensive reform package that addresses the long-term needs of growers and workers alike” still needed.
Wenkel said there’s reason to hope that legislative momentum may continue toward streamlining an H-2A program often seen as unnecessarily cumbersome and providing a path for undocumented farmworkers — estimated at between 40% and 80% of the U.S. ag workforce — to legal work status.
Wenkel encouraged growers to participate in driving the reform process forward.
“Growers telling their stories to their members of Congress or their senators of the importance of getting something done now will really help us in pushing for that in D.C.,” he said. “Take a moment, make a phone call to the congressional office, whether it’s the district office or the D.C. office, and tell them there’s a need for something to be done.”
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