The United States Court of Appeals for the D.C. Circuit has affirmed a ruling holding that employers must pay adverse effect wages to all U.S. workers that perform the same work as H-2A workers. This adverse effect wage is given as the average reported by the United States Department of Agriculture.
The H-2A program allows employers to certify to the Secretary of Labor that there are not sufficient domestic employees in a given place qualified and willing to perform a given service. They must also certify that wages and working conditions of domestic workers in similar positions will not be harmed. Part of this means that domestic workers in similar positions must also receive the adverse effect wage as well as those in” corresponding employment.”
The DOL’s policy in 2008 did not require employers to pay this wage to domestic workers that were employed prior to H-2A workers or to less skilled employees that perform work that an H-2A worker may on occasion perform as well. However, in 2010, this standard was updated by the DOL to provide a definition of corresponding employment that provides for less-skilled employees to receive adverse effect wages if the work is the same as that performed by H-2A employees.
In this particular case, the U.S. Department of Agriculture performed an investigation into whether a large New Jersey nursery was participating in the H-2A program to determine if they were complying with its requirements. The department found that the nursery’s H-2A workers were spending part of their time performing general production duties instead of the more skilled employment they were hired for. Despite performing some of the same work, these less-skilled employees were paid a lower wage than the H-2A workers.
The DOL fined the employer for their failure to comply with the requirements of the program and insisted that they pay the lesser skilled workers back wages. The employer responded by requesting that a court review the decision, and that began a many-years-long legal battle over the issue, now reaching a decision by the U.S. Court of Appeals.
The employer argued that the 2010 definition expanded the protections for U.S. workers unreasonably and provided unfair advantages for unskilled U.S. workers over skilled employees. Further, the employer argued that the new regulations conflicted with the statute’s own requirement to hire all available qualified domestic workers even after the employer is permitted to hire H-2A workers.
However, the appeals court disagreed with the employer’s assertions and found these requirements to be reasonable. The court held that when H-2A workers are performing the same work as less-skilled employees, these workers are being negatively impacted. As a result, by requiring these workers to be paid the same amount, protects these workers. Thus, the court upheld the ruling of the district court in favor of the DOL.
Employers of H-2A workers should ensure that such employees are only performing the duties for which they are employed. Otherwise, it is critical to ensure that employees that perform the same tasks are paid a minimum of the adverse effect wage in order to comply with H-2A requirements and avoid unnecessary fines and back pay.