FLORIDA GROWERS ASSOCIATION V. SU, NO. 8:23-CV-00889 AND USA FARM LABOR V. SU, NO. 1:23-CV-00089

In these two parallel cases where a growers association and a farm labor recruitment organization have challenged the Department of Labor’s newly promulgated regulation which revises the methodology for calculating the adverse effect wage rate (AEWR) to be paid to H-2A workers and domestic workers in corresponding employment. In relevant part, the new rule bases the determination of the wages paid to H-2A workers and their domestic counterparts who perform non-crop care or livestock related work on the Occupational Employment Wage Statistics (OEWS) survey instead of the Department of Agriculture’s Farm Labor Survey (FLS).

The result in the changed methodology is that the wages of H-2A workers performing non crop care or livestock related work, but who instead perform work incidental to a farming operation, such as construction (building of barns and fences), truck drivers hauling grain or farm commodities, or agricultural machinery mechanics, will be determined through a survey, the OEWS, which compares the wages of these workers who perform incidental farm labor with all workers in similar occupations in the United States, rather than applying the same wage rates applicable to other farmworkers engaged in dissimilar activities. The difference in the wage rates as established between these two methodologies can amount to as much as $7/hour for a given H-2A worker.

Farmworker Justice along with Public Citizen has submitted an amicus curiae brief in each case in support of the Department of Labor’s defense of its newly promulgated rule. In their brief, amici argue that reversion to the determination of wages of these non-traditional farmworkers based upon the Farm Labor Survey will lead to a depreciation of domestic workers within their respective industries and violate the guiding principle underlying the H-2A program: that the introduction of foreign guest workers should not adversely effect the wages or working conditions of U.S. workers. On March 29, 2024, the District Court, adopting the Magistrate’s Report and Recommendation in FGA v. Su, rejected the grower plaintiffs’ argument that the new AEWR methodology creates an attractive wage in violation of the INA. On February 24, 2025, the Fourth Circuit, in an unpublished opinion, upheld the district court decision. In its opinion, the court cited our amicus brief in support of its decision.

Labor

COLORADO LIVESTOCK ASSOCIATION VS. POLIS NO. 2024CA1153 (Colorado Court of Appeals)

In August 2023, an organization representing several ranchers in the state of Colorado, the Colorado Livestock Association (“CLA”), filed a lawsuit against the state of Colorado and the Colorado Department of Labor and Employment, alleging that the camp access provisions of the newly enacted SB 21-87 (“Farmworker Bill of Rights”) amounted to an unconstitutional taking of private property. The Farmworker Bill of Rights enshrines the right of access of key service providers, including legal aid attorneys, health and welfare workers and union organizers to speak to farmworkers outside of their work locations on a limited basis and creates a right of access to the workers on employer property only in emergency situations. Farmworker Justice joined Towards Justice and FarmSTAND in representing Colorado Legal Services in this case. In 2024, the District Court denied the Colorado Livestock Association's (CLA) bid to topple the state law. The court held that CLA did not have standing to challenge the state law. The state provision specifically requires that agricultural employers not interfere with a worker's access to service providers, including doctors and lawyers, when a worker is on break. CLA appealed the decision. On December 20, we filed an Answer brief on behalf of Intervenor Colorado Legal Services.

ROJAS V. FIRST PICK FARMS, LLC, NO. 1:23-00604 (W.D. MICH.)

Farmworker Justice, along with the Michigan Immigrant Rights Committee (MIRC) and Farmworker Legal Services of Michigan (FLS-MI) filed a case on June 9, 2023, alleging that farmworkers who were brought to North Carolina on H-2A visas, but were then later trafficked to Michigan to perform work outside of the permission of their job orders. While in North Carolina, the workers were awakened by their supervisor and were taken to Michigan to work on another farm. The farmworker-plaintiffs allege that they were subjected to horrific working and housing conditions while in Michigan, where they were forced to live in a two-bedroom house with no beds and a woefully insufficient number of toilets along with 30 other workers. Plaintiffs allege that Defendants required the Plaintiffs and their co-workers to work 12 hours a day with no breaks and work 7 days a week. The complaint asserts causes of action for violations of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and the Trafficking Victims Protection Reauthorization Act. Defendants have filed a Motion to Dismiss which remains pending.

AMICI ON INDEPENDENT CONTRACTOR RULE

Workers are often misclassified as independent contractors when they should be treated as employees, leading to the loss of minimum wage, overtime, and other workplace protections. On January 10, 2024, the U.S. Department of Labor finalized a rule on Employee vs. Independent Contractor Classification under the Fair Labor Standards Act, which was designed to reduce misclassification. Farmworker Justice had submitted comments during the proposed rulemaking for this standard, and the DOL Final Rule was favorable, such as by including language to protect seasonal workers. Since then, litigation has been filed against the DOL in multiple states challenging the rule. Democracy Forward Foundation and local counsel are representing Farmworker Justice in filing as amici in each of these lawsuits, and thus far in Georgia, Texas, Louisiana,New Mexico, and Louisiana.

Occupational Safety Standards

GARCIA ET AL V. PIONEER HI-BRED, INC., NO. 3.20-CV-03322 (C.D. ILL.)

In a pesticide exposure case, Farmworker Justice is serving as co-counsel in a federal lawsuit along with Legal Aid of Chicago, the Environmental Law & Policy Center and Texas Rio Grande Legal Aid where the organizations represent approximately 30 farmworkers including minors who allege that they suffered illnesses and injuries as a result of being sprayed with or having contact with pesticides administered via aerial application on two subsequent occasions (once by plane, the other by helicopter). The affected workers, who were recruited as migrant workers from Texas, were detasseling corn near Champaign, Illinois. The Complaint alleges that aerial applicators sprayed the Plaintiff workers with toxic pesticides as they worked on two separate occasions, even though the Workers were plainly visible. In their lawsuit, Plaintiffs have raised causes of action under tort law, the Fair Labor Standards Act (FLSA), the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and the Federal Insecticide Fungicide and Rodenticide Act (FIFRA).