Question: Do non-H-2A workers working in the same fields at the same time as H-2A workers have to be paid at the H-2A rate?

Short Answer: Yes, non-H-2A workers must be paid the same rate as H-2A workers when doing the same work.

Long Answer: In a recent June 2021 decision, the U.S. Court of Appeals for the District of Columbia Circuit ruled that employers with H-2A employees must also pay all U.S. workers who perform any work that is the same as any skilled or agricultural work performed by the H-2A workers the “adverse effect wage rate.” In Overdevest Nurseries, L.P. v. Walsh (D.C. Cir. 2021) 2 F.4th 977, Overdevest Nurseries (“Overdevest”) was an agricultural employer that participated in the H 2A program, which was paying its U.S. workers lower rates than the wages paid to its H-2A workers. Overdevest operated a large plant nursery that used both skilled and unskilled workers, the latter of which served as production workers.

Overdevest’s H-2A workers worked as order pullers overseeing ensuring the correct quantity and quality of plants were pulled and were also expected to perform other general nursery tasks, including working in production, as required. The U.S. Department of Labor (“DOL”) investigated Overdevest to ensure it was complying with the H-2A program’s requirements. The DOL found that despite H-2A workers sometimes working in general production alongside U.S. workers, the U.S. workers were being paid a lower hourly wage than the H-2A workers for the same work performed. The DOL cited Overdevest for violating the H-2A program requirements, and Overdevest appealed the decision.

In order to employ H-2A workers, employers must certify that: (A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and (B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

8 U.S.C.A. § 1188, subd. (a)(1)(A)-(B). Additionally, employers must provide the same wages, benefits, or working conditions to H-2A workers and “workers in corresponding employment.” 20 CFR 655.182(d)(1)(i). Corresponding employment is defined as, “The employment of workers who are not H-2A workers by an [H 2A] employer … in any work included in the job order, or in any agricultural work performed by the H-2A workers.” 20 CFR 655.103(b) “Corresponding employment”.

Despite Overdevest’s arguments to the contrary, the appeals court determined that requiring employers to pay non-H-2A workers the same wage rate they pay the H-2A workers when they are doing the same work as “eminently reasonable.” At this time, there have been no court decisions challenging the Overdevest court’s interpretations of 8 U.S.C.A. § 1188 nor 20 CFR 655.103 et seq, and the decision is persuasive to other courts attempting to interpret those codes and rules. It is our recommendation that growers and farm labor contractors using both

H-2A and non-H-2A workers to perform the same tasks pay their non-H-2A workers based upon the H-2A adverse effect wage rate for doing the same work. These types of decisions are often retroactively applied, and within the State of California, the statute of limitations may go back as far as four years. For assistance with compliance or resolving liability issues, please feel free to contact us at any time via phone (559) 432-3000 or by Email.