The National Council of Agricultural Employers will sue the U.S. Department of Labor to stop increases in the minimum wage for H-2A-visa foreign guestworkers.

“We will file within the next 10 days to enjoin the department ahead of Jan. 9 when it will implement new minimum wages,” Michael Marsh, president and CEO of the NCAE told Capital Press on Dec. 26.

“The scheduled increases are unsustainable. The total amount across the U.S. would be in hundreds of millions of dollars of costs to employers,” Marsh said.

“This comes at a time when farmers are getting hammered by unfair retaliatory tariffs, and because of that farm revenue has diminished,” he said. “And as a practical matter, if farmers are required to pay these extraordinary additional wages, a lot of farmers will not be able to stay in business.”

Farmers have no way to pass additional costs onto consumers and remain competitive in a global marketplace against growers who don’t have those costs, he said.

“A fruit and vegetable grower in the Midwest told me today that he estimates the increase will cost him three-quarters of a million dollars, and he’s not a large grower,” Marsh said.

NCAE represents the vast majority of agricultural employers and probably approaching 85 percent of H-2A guestworker employers. NCAE has about 300 members, many of whom are associations representing thousands of farmers and ranchers.

There were 242,762 H-2A workers in the U.S. in 2018 which is about 12 to 16 percent of the estimated 1.5 million to 2 million farmworkers in the nation. Washington state had 24,862 H-2A workers in 2018, mostly in the tree fruit industry.

The lawsuit will be filed in a U.S. district court yet to be announced, he said. The complaint will allege unsustainable increases in the minimum wage for H-2A workers, known as the AEWR or Adverse Effect Wage Rate. Injunctive relief of a temporary hold of the AEWR at 2018 levels will be sought.

“We would like DOL to examine any adverse impact to U.S. workers caused by the H-2A program,” Marsh said. “Relying on an average wage survey only results in an average and does not determine an adverse effect.”

The survey average of experienced and inexperienced workers tends to skew the AEWR upward, he said.

The AEWR is above state minimum wages and is intended to prevent wages of domestic workers from being adversely affected by the importation of foreign workers.

On Dec. 26, DOL published the 2019 AEWRs in the Federal Register to take effect Jan. 9. The new rates are up 6.3 percent nationwide and 16 percent, 23 percent and 15 percent in three regions of the Mountain West.

Meanwhile, the increase in hourly earnings for all U.S. employment is 2.8 percent and crop prices are level or decreasing from prior years, Marsh has said.

The Washington and Oregon AEWR goes from $14.12 to $15.03 per hour, the highest in the nation. Meanwhile, Oregon’s $10.75 minimum wage is set to go to $11.25 next July 1. Washington’s minimum wage is $11.50 and goes to $12 on Jan. 1.

The 2019 AEWR for other regions are:

• Mountain Region 1 (Idaho, Montana and Wyoming): $13.48, up 15.9 percent from $11.63.

• Mountain Region 2 (Colorado, Nevada and Utah): $13.13, up 22.8 percent from $10.69.

• Mountain Region 3 (Arizona and New Mexico): $12, up 14.7 percent from $10.46.

• California: $13.92 per hour, up 5.6 percent from $13.18.

The NCAE sought administrative relief from the 2019 AEWRs in a Nov. 28 letter to the secretaries of DOL and USDA. NCAE received no response, perhaps, Marsh said, because the departments feared lawsuits from legal services advocating for farmworkers.

A legislative effort, an appropriations amendment by Sen. Thom Tillis, R-N.C., has been unsuccessful as has an amendment by Reps. Dan Newhouse, R-Wash., and Henry Cuellar, D-Texas, to allow H-2A to be used year-round, not just for seasonal farm jobs, for one year.