H-2A Employers: How Much Do I Have To Pay My Workers?

One of the most important questions for any H-2A employer is “How much do I have to pay my workers?” This will provide information to help answer that question.

What Do The H-2A Regulations Say?

The law is simple enough: H-2A employers must pay their H-2A workers or U.S. workers doing the H-2A job the highest of the “AEWR”, the prevailing wage, the state or federal minimum wage, or the collectively-bargained rate. Usually, the highest will be the AEWR or prevailing wage.

Why Does DOL Set A Mandatory Wage?

The idea is that when an employer hires foreign workers that “depresses” wages for similarly employed domestic workers. DOL mandates a minimum wage to neutralize this adverse effect. 

There are numerous problems with this idea. It is impossible to measure “wage depression.” There are few to no similarly employed domestic workers in many agricultural occupations whose wages could be depressed. DOL’s mandatory minimum likely vastly overstates any wage depression and forces employers to pay far too much to counteract non-existent wage depression.

What Is The AEWR?

“AEWR” (pronounced ‘A-were’) stands for Adverse Effect Wage Rate. The AEWR is set by the Department of Labor using data from USDA’s Farm Labor Survey. The AEWR is set by region of 5-6 states. It equals the combined average wages paid for agricultural field and range labor in each region. Here are the 2017 AEWRs.

How Does DOL Come Up With The AEWR?

USDA conducts the Farm Labor Survey or FLS. DOL takes the results that USDA publishes in October and uses them to set the AEWR. DOL, however, sets the exact amount of the AEWR and usually publishes it in December.

How Can I Figure Out What The AEWR Will Be For The Upcoming Season?

Because DOL uses public data, one can estimate the AEWR for upcoming seasons. When USDA publishes its October survey result, the estimate is very good. When available, we would be happy to provide you with an estimate for your upcoming season. Just sign up at halllawfirmdc@gmail.com.

DOL Just Published A New AEWR. When Do I Have To Start Paying?

You have to pay the AEWR in effect at the time the work is performed. DOL will assess back wages if you miss even a day. Sign up below to receive AEWR rates (estimated and actual) when published.

What Is The Prevailing Wage And How Is It Set?

The “Prevailing Wage” is a wage rate that your state workforce agency (SWA) generates. Your SWA surveys wages paid in specific crop activities. The results are then presented to DOL. If accepted, DOL posts the results online making the prevailing wage official.

The Prevailing Wage Is Much Higher Than What Everyone Is Paying. What’s Going On?

You likely have a bad survey. Many SWA surveys are statistically invalid. The Hall Law Office has had success getting these surveys thrown out. If there are significant dollars involved, it’s worth finding out if you have grounds to challenge the survey.

Do I Have To Pay My Domestic Workers The AEWR Or Prevailing Wage?

If they are doing the same job as the H-2A workers, yes. DOL takes this rule one step further. DOL says that the answer is “yes” if the domestic worker does any of the H-2A workers’ job. You should ensure that your H-2A job order reflects the H-2A workers’ job. It could be a costly mistake if you do not plan well.

How Do I Get The Latest Information About The AEWR And The H-2A Program In General?

The easiest way is to send an e-mail requesting the information to halllawfirmdc@gmail.com and we’ll put you on the list for updates when they come out. You could also visit this blog regularly. Timely updates are posted as well as ongoing tips of the trade. You also might enjoy the ever-popular "The Terrible Truth About Lawyers" series which discusses making the attorney-client relationship work.