`
`
`
`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 1 of 26
`
`
`
`JOSEPH TAYLOR GOOCH (SBN 294282)
`Taylor.Gooch@wilmerhale.com
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`1 Front Street, Suite 3500
`San Francisco, California 94111
`(628) 235-1000
`Telephone:
`(628) 235-1001
`Facsimile:
`
`Attorney for Plaintiffs
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`FRESNO DIVISION
`
`UNITED FARM WORKERS and UFW
`FOUNDATION,
`
`Plaintiffs,
`
`v.
`SONNY PERDUE, WILLIAM NORTHEY, and
`THE UNITED STATES DEPARTMENT OF
`AGRICULTURE,
`
`Defendants.
`
` Case No. _________________
`
`COMPLAINT
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`COMPLAINT
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 2 of 26
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Plaintiffs United Farm Workers (“UFW”) and UFW Foundation for their Complaint against
`Defendants Sonny Perdue, in his official capacity as United States Secretary of Agriculture; William
`Northey, in his official capacity as Under Secretary, Farm Production and Conservation; and United
`States Department of Agriculture (USDA) hereby allege as follows:
`INTRODUCTION
`The United States critically depends on approximately 2.5 million farmworkers located
`1.
`in rural communities from coast to coast to produce the nation’s food supply and its agricultural
`exports. Although they are essential to ensure continuity of the food that Americans consume every
`day, these farmworkers are highly vulnerable to wage decline, job loss, or other economic dislocation.
`Their jobs typically offer only subsistence wages, are often seasonal, and are vulnerable to economic
`shocks to agricultural markets. Congress has charged defendant USDA, the U.S. Department of Labor
`(DOL), and other federal agencies with ensuring the economic security of farmworkers and the
`stability of agricultural production. While Congress has authorized the entry of foreign agricultural
`guestworkers in unlimited numbers when the domestic labor supply is inadequate, Congress also
`charged DOL with protecting U.S. farmworkers’ jobs and wages from the adverse economic
`consequences posed by the potentially limitless supply of foreign labor. To discharge their
`Congressionally mandated duties, the defendant agencies depend on accurate data about the nation’s
`farmworkers and agricultural labor markets. Numerous state and local government programs and
`private entities similarly need such data to fulfill their obligations to assist farmworkers in achieving
`economic security and just living and working conditions.
`On September 30, 2020, USDA published a cursory, one-page notice (the Notice) in
`2.
`the Federal Register announcing that it was suspending the survey that serves as the premier source
`for data on the agricultural labor markets and the only source of information about hiring and wages
`paid by U.S. farms, the Farm Labor Survey (FLS), and ceasing publication of the biannual Farm Labor
`Report (FLR). For over 100 years, USDA has consistently used the FLS to collect data about farm
`labor and wages. The Notice abruptly ended that practice.
`Notwithstanding its decision to cast aside a century-old practice, USDA provided no
`3.
`rationale for the FLS’s suspension and invited no public comment. USDA announced—without any
`1
`COMPLAINT
`
`
`
`
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 3 of 26
`
`
`
`elaboration—that it had “determined the public can access other data sources for the data collected
`in the [FLS].” After reciting a few proposed alternatives (again, without any analysis or discussion),
`the Notice flatly stated that USDA will no longer conduct the FLS or publish the FLR. USDA did
`not consider the detrimental impact its decision would have on farmworker wages or explain why
`it chose to eliminate a survey that so many federal and state entities have relied on for so long.
`USDA’s decision to discontinue both the FLS (including the survey originally
`4.
`contemplated in October 2020) and the FLR (including the next publication in November 2020) will
`cause many hundreds of thousands of farmworkers already living on subsistence incomes to suffer
`significant wage cuts. Without FLS data, U.S. farmworkers and foreign guestworkers will be paid
`on average materially less per hour than what is currently permitted under H-2A regulations. For
`the typical, affected farmworker, the losses in annual income will amount to thousands or tens of
`thousands of dollars. Those wage decreases will send ripple effects throughout the farm labor
`market, ultimately resulting in many U.S. farmworkers being paid less as farms hire an increasing
`number of foreign laborers who can be paid lower wages than U.S. farmworkers currently receive.
`For a century, the FLS has regularly surveyed a nationally representative sample of
`5.
`farm employers. While the cadence of the survey has varied somewhat over the decades, the
`purpose and scope have remained fundamentally the same. The survey asks employers to report
`their employment statistics from a weekly pay period for each quarter, including information about
`wage rates and the number of field workers and livestock workers employed. The FLS provides the
`only national data on farm labor employment and wages rates paid by farms, as well as regional and
`seasonal (quarterly) data. Farm labor data collected by other means do not accurately reflect the
`agricultural labor market, and no alternative data set is an adequate substitute for the FLS.
`The uses of the FLS data are many-fold. FLS data are used to set minimum wages for
`6.
`hundreds of thousands of U.S. and foreign workers employed on farms participating in the H-2A
`visa program. These DOL-set wages are calibrated—using FLS data—so that the admission of H-
`2A guestworkers fulfills its statutorily mandated purpose of supplementing the domestic labor
`supply while protecting U.S. workers’ wages from being undercut. FLS data are also necessary to
`administer various farmworker assistance programs and calculate accurate “parity prices” for crops,
`2
`COMPLAINT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 4 of 26
`
`
`
`prices that undergird numerous government economic programs and private production contracts.
`And many other public and private programs rely on FLS data to understand the farmworker
`population so they can efficiently deliver services.
`The information collected by the FLS is critical to DOL’s administration of the H-2A
`7.
`agricultural guestworker program. FLS data are used to calculate the annual Adverse Effect Wage
`Rates (AEWRs), a minimum wage that must be paid by H-2A program employers. The AEWR is
`the primary wage rate under the H-2A program because it is used to calculate the wages paid to the
`vast majority of U.S. and H-2A visa workers employed at H-2A program employers. Eliminating
`the FLS would eradicate, or at least fundamentally alter, the AEWR. As a result, many employers
`would be allowed to pay farmworkers the federal or state minimum wage, which is often
`substantially less than the AEWR.
`The FLS plays a similarly important role in the administration of several federal aid
`8.
`programs for U.S. farmworkers and foreign guestworkers. The FLS, in tandem with other data
`sources, is used to allocate funding and other resources for the National Farmworker Jobs Program,
`administered by DOL; the Migrant and Seasonal Head Start Program, administered by the U.S.
`Department of Health and Human Services; and the programs assisting migrant farmworkers
`administered by the Legal Services Corporation—programs that provide economic, housing,
`professional, educational, and legal assistance to farmworkers. The FLS’s unrivaled data on
`farmworker demographics helps ensure that public funds are efficiently targeted to farmworkers’
`needs.
`
`9. Moreover, USDA relies on FLS data to calculate parity prices for agricultural products
`and the parity index, a data set upon which economic planning and numerous farm support programs
`rely. The wages paid to workers hired by farms is an important component of the parity index and
`has been used in its calculation since 1933. Without these data, the parity index would be less
`representative of the expenses borne by U.S. farms and thus would be a less useful tool for protecting
`food production—and food producers—from market shifts and changes to agricultural prices.
`Protecting the agricultural sector from economic turmoil has been foundational to American
`economic policy for nearly a century, and numerous parties—including workers employed on
`3
`COMPLAINT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 5 of 26
`
`
`
`farms—would be affected if this protection was destabilized. Since data concerning the wages paid
`by farms are not collected outside of the FLS, it would not be possible to accurately calculate the
`statutory parity index if the FLS was suspended.
`10. Finally, the FLS, in combination with other data sets, provides the detailed
`information about the U.S. farm labor market required or otherwise relied upon by many other
`federal programs and in turn relied upon by states and private entities. For example, the FLS
`provides reliable regional and statewide information that can be combined with other data sources,
`such as the Agricultural Census, to estimate the number of farmworkers that reside in specific areas,
`which DOL relies on to determine whether domestic workers can satisfy farm labor demands.
`DOL’s National Agricultural Workers Survey (NAWS) also uses FLS data to estimate the
`demographics of farmworkers by region and state on a yearly or seasonal basis. And other federal
`entities—including the congressionally mandated 1992 Commission on Agricultural Workers and
`the Congressional Budget Office—have long used the FLS in conjunction with other data sources
`to assess the farmworker population in the United States.
`In sum, the FLS has for over 100 years been a critical and unique component of the
`11.
`government’s efforts to collect data on agricultural labor markets. Those data directly support
`substantial programs administered by both DOL and USDA, and they are used by the federal
`government in combination with other survey data to plan and implement policies and programs for
`farmworkers. In deciding to discontinue the FLS, USDA failed to explain its rationale for abruptly
`ending a century-old survey, and it failed to consider the numerous weighty interests that would be
`impacted by that decision. The decision is therefore arbitrary and capricious and an abuse of
`discretion. Moreover, USDA’s action is procedurally defective under the Administrative Procedure
`Act. For those reasons, USDA’s abrupt decision to discontinue the FLS and cease publication of
`the FLR should be enjoined.
`
`JURISDICTION AND VENUE
`12. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 over this action for review
`of final agency action under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and 28 U.S.C.
`§§ 2201-2202 (declaratory and further relief).
`
`4
`COMPLAINT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 6 of 26
`
`
`
`13. Venue is proper in this District under 28 U.S.C. § 1391(e)(1) because Defendant
`USDA is an agency of the United States and officers acting in their official capacity, no real property
`is involved in this action, plaintiff UFW resides in the District, and the challenged regulations impact
`tens of thousands of farmworkers in the District.
`INTRADISTRICT ASSIGNMENT
`14. This action involves legal challenges to final agency action that adversely affects
`Plaintiff UFW, which has its headquarters in Kern County, and thousands of farmworkers living
`and working in Kern County and elsewhere in the Fresno Division. Assignment of this case to the
`Fresno Division is therefore proper under Civil L.R. 120(d), because a significant portion of the
`impacted farmworkers live or work in or adjacent to counties within that division.
`PARTIES
`15. Plaintiff United Farm Workers is the nation’s first successful and largest farmworkers’
`union with a total membership of over 45,000 members across the nation, including farmworkers,
`both U.S. and foreign, employed at employers that participate in the H-2A temporary foreign worker
`program. UFW is headquartered in Keene, California, and maintains offices in Oregon and
`Washington State, and has a substantial membership in numerous other states, including in Idaho,
`Arizona, and New Mexico. UFW’s mission is to support the rights and interests of farmworkers,
`including advocating for wages and workplace safety, and to provide farmworkers with the tools
`that they need to succeed. UFW provides services and information to hundreds of thousands more
`farmworkers through social media efforts and a text membership program that reach farmworkers
`in over thirty states throughout the United States, and through partnerships with La Campesina radio
`network and a network of organizations that provide services to farmworkers, including the UFW
`Foundation, Cesar E. Chavez Foundation, La Union del Pueblo Entero, and the National
`Farmworker Service Center. UFW and its members are particularly interested in farmworker wages.
`UFW’s members have relied on and benefitted from the yearly AEWR wage standards that operated
`as a floor protecting UFW-member farmworkers who work for H-2A program employers.
`Suspension of the FLS and the consequent impairment of the AEWR standard would therefore result
`in substantial decreases to UFW members’ wages. UFW brings this action on behalf of its members
`5
`COMPLAINT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 7 of 26
`
`
`
`and farmworkers who rely on those AEWR wages and would suffer substantial harm because of
`USDA’s decision.
`16. Plaintiff UFW Foundation, a sister organization to UFW, is a dynamic non-profit
`organization established in 2006 with the core purpose of empowering communities to ensure
`human dignity. The UFW Foundation has staff serving farmworkers and low-income immigrants
`in California, Arizona, Washington, Oregon, and Michigan. It serves over 100,000 farmworkers
`across the United States. Through worker engagement and legislative advocacy, the UFW
`Foundation seeks to advance the rights of farmworkers. In 2019, the UFW Foundation served over
`100,000 farmworkers and low-income community members in California and Arizona. More
`recently, the UFW Foundation has distributed emergency relief to farmworkers during the
`pandemic. At least $11 million in financial assistance is being provided to over 22,000 farmworkers
`in California, Oregon, and Washington by November 2020. The UFW Foundation also helped to
`distribute 189,000 meals and over 27,000 food boxes to California farmworkers in 2020. The UFW
`Foundation’s work and members are directly impacted by increased poverty among farmworkers;
`as such, the UFW Foundation, its members, and farmworkers across the United States will be
`harmed by USDA’s action. The UFW Foundation has also coordinated the distribution of over
`300,000 masks in rural farmworker communities in California, Oregon, Washington, and Michigan
`since March 2020. In 2019, the UFW Foundation led a campaign to submit over 80,000 public and
`farmworker comments regarding the DOL’s proposed rule to enact a series of regulatory changes
`to the H-2A foreign guestworker visa program. At the federal level, the UFW Foundation and its
`farmworker members have educated legislators about the need for basic labor protections for both
`H-2A guestworkers and U.S. farmworkers. The UFW Foundation brings this action on behalf of
`itself and its members and farmworkers who have benefited and will benefit from the services it
`provides, and who would be harmed by USDA’s decision.
`17. Defendant Sonny Purdue is the United States Secretary of Agriculture. The Secretary
`is ultimately responsible for all functions of the United States Department of Agriculture, including
`administration of the Farm Labor Survey. He is sued in his official capacity.
`
`6
`COMPLAINT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 8 of 26
`
`
`
`18. Defendant William Northey is the Under Secretary for Farm Production and
`Conservation at USDA. He is sued in his official capacity.
`19. Defendant United States Department of Agriculture is a federal agency of the United
`States. It is responsible for administering the Farm Labor Survey.
`FACTS
`
`The Farm Labor Survey
`A.
`20. Federal law instructs the Secretary of Agriculture to procure and preserve information
`concerning agriculture, including “by the collection of statistics” and “any other appropriate means
`within his power.”1
`21. Since 1910, the Secretary has satisfied that statutory mandate in part by conducting
`the Agricultural Labor Survey, often referred to as the Farm Labor Survey.2 The FLS collects
`information from farm employers to obtain data on farm employment, hours worked, wages paid,
`and other statistics. Thus, for over 100 years, USDA has consistently employed the FLS to collect
`data about farm labor and wages.3
`22. The FLS is traditionally conducted in April and October. During those months, the
`survey collects wage and employment data for four reference weeks, one in each quarter, from farms
`and ranches with $1,000 or more in annual agricultural sales revenue for all states except Alaska.4
`The FLS samples approximately 35,000 farms and ranches.5 Most FLS data is collected by mail
`and computer-assisted phone interviews, with personal interviews used for some large operations
`and those with special handling arrangements.6 The October 2020 survey is expected to be
`
`
`
`1 7 U.S.C. § 2204(a).
`2 See Daberkow & Whitener, Agricultural Labor Data Sources: An Update 6 (Aug. 1986).
`3 From 1910 to 1974, the FLS was conducted on a monthly basis. From 1974 through the second
`quarter of 1981, as well as from 1984 to the present (with limited exceptions), the survey was
`conducted on a quarterly basis. In 1982 and 1983, the survey was conducted once per year. See
`Daberkow & Whitener, supra, at 6.
`4 USDA NASS, Farm Labor Methodology and Quality Measures (May 28, 2020),
`https://www.nass.usda.gov/Publications/Methodology_and_Data_Quality/Farm_Labor/05_2020/f
`arm_labor_qm.pdf.
`5 Id.
`6 Id.
`
`7
`COMPLAINT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 9 of 26
`
`
`
`conducted from on or about October 19, 2020 through on or about November 7, 2020, and the FLR
`is expected to be published in or about the week of November 23, 2020.7
`23. The National Agricultural Statistics Service (NASS)—USDA’s statistical branch—
`publishes FLS data semiannually in May and November in the FLR. The May report includes
`employment and wage estimates based on January and April reference weeks, and the November
`report includes estimates based on July and October reference weeks.8 The report includes quarterly
`estimates of the number of hired workers and average hours worked per worker during each
`reference week. It also includes quarterly estimates of average hourly wage rates for field workers,
`livestock workers, field and livestock workers combined, and all hired workers (including
`supervisors/managers and other workers).9 The November report also provides annual data based
`on the quarterly estimates.10
`24. For example, the November 2019 FLR disclosed that 809,000 workers were hired
`directly by farm operators during the week of October 6-12, 2019, a 3% increase from the prior
`year. Those workers were paid an average gross wage of $15.02 per hour during that reference
`week, up 4% from October 2018, and the wage rate for field and livestock workers combined was
`$14.21 per hour, up 4% from the 2018 reference week.11 The November 2019 FLR also stated that
`for hired workers the “annual average gross wage rate was $14.91 per hour, up 5 percent from the
`2018 annual average gross wage rate.”12
`25. The most recent FLR, published on May 28, 2020, reported that there were 688,000
`workers hired directly by farm operators during the week of April 12-18, 2020, reflecting a 9%
`increase from April 2019.13 These workers were paid an average gross wage of $15.07 per hour
`
`
`
`7 See id.
`8 See USDA NASS, Farm Labor: Get the Data, https://www.nass.usda.gov/Surveys/
`Guide_to_NASS_Surveys/Farm_Labor/ (last visited Oct. 9, 2020).
`9 Id.
`10 Id.
`11 USDA, Farm Labor (Nov. 21, 2019), https://downloads.usda.library.cornell.edu/usda-
`esmis/files/x920fw89s/c821h164m/fq9788943/fmla1119.pdf.
`12 Id.
`13 USDA, Farm Labor (May 28, 2020), https://downloads.usda.library.cornell.edu/usda-
`esmis/files/x920fw89s/n583zg017/dn39xm85z/fmla0520.pdf.
`8
`COMPLAINT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 10 of 26
`
`
`
`during the April 2020 reference week, up 2% from the prior year. The combined wage rate of field
`and livestock workers was $14.16 per hour, up 3 percent from the April 2019 reference week. For
`the January 2020 reference week, the wage rate for field and livestock workers combined was
`$14.20 per hour, up 3 percent from the January 2019 reference week. These wage increases suggest
`that the 2020 wage rates would have been found to be higher than the corresponding 2019 wage
`rates had USDA conducted the survey in October and published the November FLR.
`USDA’s Decision To Discontinue The Survey
`B.
`26. On September 30, 2020, USDA announced the suspension of October 2020 FLS data
`collection and the cancellation of its November 2020 publication of the biannual FLR.14 USDA did
`not solicit any public comment or employ formal rulemaking procedures.15 This Notice amounts to
`final agency action with respect to the suspension of FLS data collection and FLR publication.
`27. The Notice provides no rationale for suspending the FLS data collection or FLR
`publication.
`28. The Notice acknowledges some of the many uses of FLS data.16 The Notice asserts,
`however, that “USDA has determined the public can access other data sources for the data collected”
`by the FLS. It does not explain how those alternative data sources will replace the unique data that
`FLS collects on farmworkers and agricultural labor markets. Nor does it consider how eliminating
`the FLS will affect the federal programs and services that rely on the FLS data.
`29. The Notice also does not consider how the decision to discontinue the FLS and FLR
`will prevent DOL from computing AEWRs under the H-2A program, or the resulting lower wages
`for both U.S. and H-2A farmworkers. Nor does the Notice address the serious harm that H-2A and
`U.S. farmworkers—who disproportionately work for subsistence wages—will suffer from these
`wage cuts.
`
`
`14 Notice of Revision to the Agricultural Labor Survey and Farm Labor Reports by Suspending
`Data Collection for October 2020, 85 Fed. Reg. 61719 (Sept. 30, 2020).
`15 See id.
`16 See id. (“Number of workers and hours worked have been used to estimate agricultural
`productivity; wage rates have been used in the administration of the H–2A Program and for setting
`Adverse Effect Wage Rates. Survey data have also been used to carry out provisions of the
`Agricultural Adjustment Act.”).
`
`9
`COMPLAINT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 11 of 26
`
`
`
`C.
`
`USDA, DOL, And Others Recognize That The Farm Labor Survey Plays A
`Critical Role In Administering Federal And State Programs
`30. USDA recognizes that the FLS and the agricultural labor statistics the survey provides
`“are an integral part of [NASS’s] primary function of collecting, processing, and disseminating
`current state, regional, and national agricultural statistics.”17 “The Agricultural Labor Survey,” the
`USDA has explained, “is the only timely and reliable source of information on the size of the farm
`worker population.”18
`31. The FLS provides information about farmworker labor and wages that is critical to
`the administration of several federal programs.
` USDA recognizes, for example,
`that
`“[c]omprehensive and reliable agricultural labor data are … needed by [DOL] in the administration
`of the ‘H-2A’ program.”19 Specifically, “[t]he annual weighted average hourly wage rate for field
`and livestock workers combined” collected by the FLS “is currently used as the Adverse Effect
`Wage Rate in administration of the H-2A Program,” “the provision under the Immigration Reform
`and Control Act that allows admission of temporary non-immigrant alien farm workers to perform
`farm labor or services of a temporary or seasonal nature.”20
`32. FLS data is also used to administer several other federal programs that aim to assist
`migrant and seasonal farmworkers. Those programs, which include the National Farmworker Jobs
`Program, the Migrant and Seasonal Head Start Program, and the Legal Services Corporation
`Migrant Program, use information about farmworker populations collected by the FLS to allocate
`federal resources.
`33. The farmworker wage rates collected by the FLS also “help [USDA to] measure the
`changes in cost of production of major farm commodities” and “to compute parity prices of farm
`products,” a calculation that the USDA is mandated by statute to publish.21 A number of
`
`
`17 Submission for OMB Review; Comment Request, 83 Fed. Reg. 50631, 50632 (Oct. 2, 2018).
`18 Id. (emphasis added).
`19 Id.
`20 USDA NASS, Farm Labor: About the Survey, https://www.nass.usda.gov/Surveys/Guide_to_
`NASS_Surveys/Farm_Labor/ (last visited Oct. 9, 2020).
`21 Id.
`
`10
`COMPLAINT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 12 of 26
`
`
`
`administrative acts require use of parity prices, including the Agricultural Marketing Agreement
`Act of 1937, the Food and Agricultural Act of 1977, and the Agriculture and Food Act of 1981.22
`34. The FLS also plays an important role in ensuring that the federal government has an
`accurate understanding of the farmworker population in the United States. FLS data, when
`combined with other data sources, offers substantial statistical insights into the farmworker
`community.
`35. Beyond those uses, the FLS provides important information about farm labor that is
`used in a variety of ways. USDA acknowledges that “[t]he employment and wage estimates
`published in the FLR are used by federal, state, and local government agencies; educational
`institutions; farm organizations; and private sector employers of farm labor.”23 For example, the
`FLS is “used by farm worker organizations to help set wage rates and negotiate labor contracts as
`well as determine the need for additional workers and to help ensure federal assistance for farm
`worker assistance programs supported with government funding.”24 USDA likewise recognizes
`that “[t]he data that farm operators provide through NASS’s Agricultural Labor Survey allow
`federal policymakers to base farm labor policies on accurate information.”25
`DOL Relies On Farmworker Wage Information Collected By The FLS
`1.
`To Administer The H-2A Program
`
`36. The H-2A agricultural guest worker program permits agricultural employers to hire
`foreign workers to perform agricultural work on a temporary basis when domestic labor markets
`cannot supply adequate workers at a particular time for a certain job. Employers are only authorized
`
`
`22 USDA NASS, Price Program: History, Concepts, Methodology, Analysis, Estimates, and
`Dissemination – Chapter Four – Parity Prices, Parity Ratio, and Feed Price Ratios (2011),
`https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Prices/Price_Program_Methodolog
`y_v10.pdf.
`23 USDA NASS, Farm Labor: About the Survey, https://www.nass.usda.gov/Surveys/Guide_to_
`NASS_Surveys/Farm_Labor/ (last visited Oct. 9, 2020).
`24 83 Fed. Reg. at 50632.
`25 News Release, USDA Gathers Data About On-Farm Labor (Mar. 25, 2019),
`https://www.nass.usda.gov/Statistics_by_State/Oregon/Publications/Current_News_Release/Ag%
`20Labor%20Survey_News%20Release.pdf.
`
`11
`COMPLAINT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 13 of 26
`
`
`
`to hire foreign guestworkers, however, if DOL certifies that the foreign workers’ temporary
`employment “will not adversely affect the wages and working conditions of workers in the United
`States similarly employed.”26 And DOL has recognized, as a general matter, that the introduction
`of foreign guest workers makes wage stagnation or depression likely to occur.27
`37. To avoid adverse effects to U.S. workers’ wages, DOL regulations require that
`employers utilizing the H-2A program pay a wage that is the highest of the Adverse Effect Wage
`Rate (AEWR), the prevailing wage rate, an agreed-upon collective bargaining wage, or the federal
`or state minimum wage.28
`38. Under those regulations, DOL relies primarily on a two-pronged approach based on
`the AEWR and prevailing wage rate to guard against wage depression that would otherwise result
`from the hiring of large numbers of foreign agricultural workers.29 The prevailing wage rate protects
`local wages paid for particular jobs, while the AEWR sets a state-wide wage floor to prevent wage
`disparities over larger areas and all the jobs at H-2A employers in that area. DOL has recognized
`that it is the existence of both the AEWR and prevailing wage rates that ensures that U.S. workers
`are adequately protected from decreased wages caused by an influx of foreign guest workers.30 The
`AEWR, however, is the primary wage rate under the H-2A program because it is higher than the
`other minimum wages in most circumstances.31 As a result, the AEWR determines the wages of
`approximately 92% of the farmworkers at H-2A program employers.32
`39. DOL’s regulations have required it to use the FLS to calculate the AEWR for the H-
`2A program since the program’s inception in 1986, and it had used FLS data for the H-2A’s
`
`
`
`26 8 U.S.C. § 1188(a).
`27 See Temporary Agricultural Employment of H–2A Aliens in the United States, 75 Fed. Reg.
`6884, 6892 (Feb. 12, 2010); Temporary Agricultural Employment of H–2A Aliens in the United
`States, 74 Fed. Reg. 45906, 45911 (Sept. 4, 2009).
`28 See 20 C.F.R. 655.120(a); Temporary Agricultural Employment of H–2A Nonimmigrants in the
`United States, 84 Fed. Reg. 36168, 36265 (July 26, 2019).
`29 See Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the
`United States; Adverse Effect Wage Rate Methodology, 54 Fed. Reg. 28037, 28040, 28045 (July 5,
`1989).
`30 See 75 Fed. Reg. at 6893.
`31 See 84 Fed. Reg. at 36179.
`32 See id.
`
`12
`COMPLAINT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 1 Filed 10/13/20 Page 14 of 26
`
`
`
`predecessor program since 1953.33 Because of DOL’s longstanding reliance on the survey, USDA
`conducts the FLS in cooperation with DOL,34 and DOL has funded the FLS since July 2011 pursuant
`to a memorandum of understanding between the agencies.35
`In 2010, DOL recognized that using data other than the FLS to calculate AEWRs
`40.
`“entails a significant risk that U.S. workers may in the future experience wage depression as a result
`of unchecked expansion of the demand for foreign workers.