Wage Disparity Between US Workers and H-2A Workers Was Unlawful

​The U.S. Court of Appeals for the District of Columbia Circuit affirmed that employers are required to pay the "adverse effect wage rate" to all U.S. workers who perform any work that is the same as any skilled or agricultural work performed by H-2A workers. The adverse effect wage rate is the average hourly wage for agricultural workers as reported by the U.S. Department of Agriculture.

Overdevest Nurseries is a large plant nursery in New Jersey that has participated in the H-2A program since 1999. Overdevest employs both skilled and less-skilled workers. Less-skilled U.S. workers serve as Overdevest's production workers. Overdevest also employs H-2A workers (workers from other countries hired to perform temporary agricultural work) as order pullers who "hold the paper" and see to it that the correct quantity and quality plants are pulled by the crew. In the work-order forms, Overdevest certified that it expected H-2A workers to perform other general nursery tasks as necessary.

In 2013, the U.S. Department of Labor (DOL) investigated whether Overdevest was complying with the H-2A program. Overdevest's H-2A workers were sometimes performing general production work, but Overdevest was paying the U.S. production workers performing the same work a lower hourly wage than the H-2A workers. The DOL concluded that Overdevest violated the H-2A regulations that require employers to pay the adverse effect wage rate to any U.S. workers serving in corresponding employment. Overdevest alleged that the DOL misapplied the 2010 rule defining corresponding employment against Overdevest.

To participate in the H-2A program, an employer must certify to the secretary of labor that there are not sufficient domestic workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services. The employer also must certify that the employment of the foreign worker in such labor or services will not adversely affect the wages and working conditions of similarly employed U.S. workers. Under these regulations, employers must pay the adverse effect wage rate to both H-2A workers and non-H-2A workers. Employers must also pay the adverse effect wage rate to workers engaged in "corresponding employment."

In 2008, the regulation did not require employers to pay the adverse effect wage rate to U.S. workers hired prior to the H-2A workers or to less-skilled U.S. workers in a different occupation than the H-2A workers, even though the H-2A workers might occasionally perform the same work as those less-skilled U.S. workers. In 2010, the DOL amended the regulations defining "corresponding employment" by requiring employers to pay the adverse effect wage rate to any and all U.S. workers who perform any work that is the same as any skilled or agricultural work performed by H-2A workers.

Overdevest argued that this definition "unreasonably expanded" the protections to any U.S. worker performing the same work as H-2A workers, thereby creating two classes of U.S. workers, where unqualified U.S. workers are placed at an advantage over qualified U.S. workers. Overdevest further contended that the regulation runs contrary to both the statute and other regulations that require employers to continue to hire qualified U.S. workers, if available, even after the employer has been certified to hire H-2A workers.

The appeals court found it "eminently reasonable" that by requiring employers to pay non-H-2A workers the same amount they pay the H-2A workers when they are doing the same work, the department was protecting similarly employed workers who are adversely affected. Additionally, the court determined that the secretary's enforcement against Overdevest was not arbitrary and capricious. The court commented that Overdevest had several methods at its disposal to avoid running afoul of any of the department's regulations. These methods included drafting narrower work orders and paying the H-2A workers for any idle hours needed to satisfy the "three-fourths guarantee" or simply paying the domestic workers the same wage as H-2A workers whenever the H-2A workers were performing the same work.

Overdevest Nurseries LP v. Walsh, D.C. Cir., No. 20-5163 (June 25, 2021).

Professional Pointer: Employment of H-2A workers carries additional employment requirements. For example, employers must guarantee to offer each H-2A worker employment for a total number of hours equal to at least 75 percent of the workdays in the contract period—called the "three-fourths guarantee." Additionally, employers must provide housing at no cost to H-2A workers and to workers in corresponding employment who are not reasonably able to return to their residence within the same day.

Roger S. Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.