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`Case 1:20-cv-01690-DAD-JLT Document 74 Filed 06/11/21 Page 1 of 8
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`UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF CALIFORNIA
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`UNITED FARM WORKERS, et al.,
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`No. 1:20-cv-01690-DAD-JLT
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`Plaintiffs,
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`v.
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`THE UNITED STATES DEPARTMENT
`OF LABOR, et al.,
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`Defendants.
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`
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`ORDER AMENDING THE COURT’S MAY 14,
`2021 ORDER GRANTING PLAINTIFFS’
`MOTION SEEKING AN EXTENSION OF THE
`COURT’S PREVIOUSLY GRANTED
`PRELIMINARY INJUNCTIVE RELIEF IN THE
`FORM OF EQUITABLE RESTITUTION AND
`TEMPORARY STAY OF THIS ORDER
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`(Doc. Nos. 44, 58, 64)
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`On December 23, 2020, the court granted plaintiffs United Farm Workers and UFW
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`Foundation’s (collectively, “plaintiffs”) motion for a preliminary injunction in this action. (Doc.
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`No. 37.) Therein, the court prohibited defendants United States Department of Labor (“DOL”)
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`and the Secretary of Labor (collectively, “defendants”) from implementing the final rule
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`published on November 5, 2020, and required defendants to publish 2021 Adverse Effect Wage
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`Rates (“AEWRs”) in accordance with the existing regulations. (Id. at 39); see also Adverse Effect
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`Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range
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`Occupations in the United States, 85 Fed. Reg. 70,445 (Nov. 5, 2020). On January 12, 2021, the
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`court issued a supplemental order that, among other things, directed defendants “to provide notice
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`to all H-2A employers who submit job orders and applications for H-2A labor certification
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`between December 21, 2020 and the publication of the final 2021 AEWRs” and inform them of
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`the potential of backpay claims. (Id. at 4.)
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`On February 23, 2021, the DOL’s Employment and Training Administration issued a
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`notice in the Federal Register announcing the 2021 AEWRs applicable to H-2A workers and
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`workers in corresponding employment performing agricultural labor or services other than the
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`herding or production of livestock on the range. Labor Certification Process for the Temporary
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`Employment of Aliens in Agriculture in the United States: 2021 Adverse Effect Wage Rates for
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`Non-Range Occupations, 86 Fed. Reg. 10,996 (Feb. 23, 2021). The AEWRs set forth in that
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`notice were effective immediately. Id.
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`On March 11, 2021, plaintiffs filed a motion seeking wage adjustment payments for
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`qualifying farmworkers. (Doc. No. 44 at 9.) Following two hearings, on May 14, 2021, the court
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`granted plaintiffs’ motion, which it construed as a motion seeking an extension of the court’s
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`previously granted preliminary injunctive relief in the form of equitable restitution. (Doc. No.
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`58.) The court directed defendants to notify state workforce agencies, employers, and the public
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`within seven days of the court’s order that H-2A employers who submitted job orders and
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`applications for H-2A labor certification between December 21, 2020 and February 23, 2021
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`were required to make wage adjustment payments to qualifying H-2A workers and U.S.
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`farmworkers in corresponding employment who worked during the period from January 15, 2021
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`to February 23, 2021 (“the Interim Period”) and received an hourly wage below the
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`geographically applicable 2021 AEWR. (Id. at 13.) The court also directed defendants to require
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`that any H-2A employer with H-2A workers or U.S. farmworkers in corresponding employment
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`during the Interim Period be required to certify compliance with the wage adjustment requirement
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`either as part of its next H-2A application or by other valid and enforceable means. (Id. at 14.)
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`On June 3, 2021, following three weeks of conferring, the parties filed a joint status report
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`in this action which included two requests for modifications of the court’s May 14, 2021 order.
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`(Doc. No. 64.) On June 8, 2021, the court directed the parties to submit supplemental briefing
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`providing clarification as to a statement made by plaintiffs’ counsel in the status report with
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`regard to one of the requested modifications of the court’s order. (Doc. No. 66.) On June 10,
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`2021, plaintiffs and defendants each submitted a supplemental brief addressing that matter. (Doc.
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`Nos. 67, 68.)
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`At the outset, the court will adopt defendants’ unopposed proposal to amend the May 14,
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`2021 order with regards to the administrable and enforceable means of ensuring compliance with
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`the required wage adjustment. (See Doc. No. 64 at 3.) The proposed amendment directs
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`defendants to notify covered employers “that they (1) are responsible for maintaining accurate
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`and adequate earnings records, consistent with 20 CFR 655.122(j), to establish compliance with
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`the equitable restitution obligation specified in the court’s order, and (2) must certify compliance
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`with the wage adjustment requirement in a manner determined by the Department.” (Id. at 14.)
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`The court finds this modification to be appropriate and will amend its May 14, 2021 order
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`accordingly.
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`However, the court has not been persuaded to adopt plaintiffs’ proposal to remove from
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`the May 14, 2021 order’s clause the limiting language “who submitted job orders and applications
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`for H-2A labor certification between December 21, 2020 and February 23, 2021.” (See id. at 3–
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`4.) Plaintiffs argue that the order as currently worded in this regard is unnecessarily restrictive,
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`because only 1,404 farmworkers will receive wage adjustment payments under the terms of the
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`current order. (Id. at 4; see also Doc. No. 64-1 at ¶ 9.) They assert that their proposed
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`amendment eliminating that limiting language would instead allow 94,223 farmworkers to
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`receive wage adjustment payments and is therefore necessary to effectuate the equitable relief
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`reflected in the court’s May 14, 2021 order and discussed during the hearing on plaintiffs’ motion
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`seeking that relief. (Doc. No. 64 at 4–5) (citing Doc. No. 64-1 at ¶ 10.) Plaintiffs note that the
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`court previously referenced their estimate in moving for such relief that more than 73,200 H-2A
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`workers would receive wage adjustments. (Id. at 5) (citing Doc. No. 58 at 11).
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`Upon reflection, the court acknowledges an ambiguity within its May 14, 2021 order with
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`regards to which farmworkers would receive backpay under the 2021 AEWR for work they
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`performed during the Interim Period. The court’s order intentionally highlighted the importance
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`of reasonable reliance and notice, and it was always the court’s intent to strike a balance by
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`compensating farmworkers at the correct rate where growers had timely notice of that possibility
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`while not imposing an unfair hardship on growers who had no such notice at the time they applied
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`or contracted for H-2A farmworkers. (See Doc. No. 58 at 8–9, 11–12.) It was always the court’s
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`view that the latter group could not fairly be required to pay backpay with respect to the Interim
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`Period. However, upon reviewing its order, the court acknowledges that this intention was
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`unfortunately only spelled out in the order clause and not in the body of the order. Moreover,
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`sections of the order could be fairly read as suggesting the appropriateness of a broader backpay
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`order. The undersigned apologizes for the confusion caused by that inartful drafting and the
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`uncertainty that has followed.
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`That being said, the court reaffirms its findings in the May 14, 2021 order. Although
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`some of the order’s language can be construed as granting relief to all farmworkers after January
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`15, 2021 on the basis of public notice, this was never the court’s intent. Plaintiffs argue that even
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`if the May 14, 2021 order were amended, all employers were notified that the wage freeze was
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`unlawful and that wage adjustment payments may be required. (Doc. No. 64 at 8.) The court
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`disagrees. In keeping with the court’s January 12, 2021 order, the DOL’s January 15, 2021 notice
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`stated the following:
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`Accordingly, the court ordered the Department to provide notice to
`all employers who submit job orders and applications under the H-
`2A program between December 21, 2020, and the publication of
`2021 AEWRs in the Federal Register, that affected H-2A workers
`may have a potential claim for backpay. Accordingly, and as part
`of their regulatory obligations to maintain accurate and adequate
`earnings records (see 20 CFR 655.122(j)), the Department reminds
`employers to record the names and permanent home addresses of all
`H-2A workers who may later be entitled to backpay, and make
`reasonable efforts to ensure that such information for each worker
`remains current.
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`See U.S. Dep’t of Labor, Employment and Training Administration—Announcements (Jan. 15,
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`2021), https://www.dol.gov/agencies/eta/foreign-labor/news (last visited June 4, 2021). The
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`notice that the court ordered be provided was directed specifically to employers who submitted
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`job orders and applications within a specific period of time. Defendants correctly assert that
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`plaintiffs’ proposed amendment would result in imposing a backpay requirement on over 3,500
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`additional employers who were not on notice that any backpay order that might issue could apply
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`to them. (Doc. No. 64 at 11) (citing Doc. No. 64-1 at ¶¶ 9–10).
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`The court is sympathetic to the concern expressed by plaintiffs’ counsel and
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`acknowledges, as it did in its May 14, 2021 order, that every dollar counts for families living at
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`subsistence level. (See Doc. No. 58 at 12) (citing Paxton v. Sec’y of Health & Human Servs., 856
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`F.2d 1352, 1354 (9th Cir. 1988)). But the court must also take into consideration the hardships
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`that plaintiffs’ proposed amendment would cause growers who were never placed on notice of the
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`potential for a backpay award when they made operating decisions, since those growers cannot
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`now make adjustments to reflect the true cost of labor. If an employer submitted a job order or
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`H-2A application from December 21, 2021 onward, they knew that the rule had been enjoined.
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`As the court noted in its May 14, 2021 order, growers before that point had no reason to believe
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`the rule was invalid, even if they knew litigation challenging it had been commenced. (See id. at
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`8–9.) In the court’s view, the May 14, 2021 order strikes an equitable balance between both these
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`hardships to the best of the court’s ability.
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`However, the court will make a slight modification to the May 14, 2021 order’s wording.
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`Plaintiffs contend that “even if the order were to apply more broadly to all employers that
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`submitted applications during the December 21, 2020, to February 23, 2021 period, recent data
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`published by DOL suggests that 6,464 farmworkers would potentially receive wage adjustment
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`payments” because they worked for an employer that submitted an H-2A application between
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`December 21, 2020, and February 23, 2021, and sought workers for the Interim Period.1 (Doc.
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`No. 64 at 5.) In their supplemental briefing on the issue, plaintiffs clarify that “by simply
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`removing the requirement that employers must have submitted a job order during the relevant
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`period (in addition to an H-2A application), the order would still apply to a broader group of
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`farmworkers . . ..” (Doc. No. 67 at 3.)
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`The court apologizes for this confusion stemming from the language employed in that
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`order as well. Nonetheless, here again, it was always the court’s intention to impose this backpay
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`requirement on employers who submitted either job orders or H-2A applications under the H-2A
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`1 In their supplemental briefing, defendants note the DOL estimates that expanding the order
`would likely cover approximately 6,568 certified worker positions. (Doc. No.68 at 2 n.2.)
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`program between December 21, 2020 and the publication of 2021 AEWRs. Indeed, the request
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`for supplemental briefing was based upon the court’s belief that this intention was clear.
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`Moreover, it appears that those employers who submitted job orders alone, H-2A applications
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`alone, or both a job order and an H-2A application during the period in question did receive
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`actual notice of the potential for a backpay award based upon the 2021 AEWRs. This is because
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`the court understands that the notice was provided by way of an online posting on defendant’s
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`website. In the undersigned’s view, fair notice of the potential for a backpay award was provided
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`by this posting to those employers who submitted job orders, or applications, or both during the
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`prescribed period.2 The court intended only to exclude employers from the backpay obligation
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`who had completed either their job orders or their H-2A applications or both prior to December
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`21, 2020.3 Accordingly, the court will now make one final amendment to its order to resolve any
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`arguable ambiguity in this regard. By extension, the court will also grant defendants’ request that
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`compliance with the revised order be required within fourteen (14) days of this order. (See Doc.
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`2 On June 10, 2021, just as this order was being prepared for filing on the docket, proposed
`intervenor National Council of Agricultural Employers filed a motion to intervene and a motion
`to stay all proceedings in this case pending the court’s ruling on the pending motion to intervene.
`(Doc. Nos. 69, 70.) Attached to the pending motion to intervene are the declarations of Jason
`Resnick, Michael Marsh, and Leticia Ridaura. (Doc. No. 70 at 23–31.) Although the court has
`not had an opportunity to thoroughly review the motions, the court has reviewed the attached
`declarations. Resnick, Marsh, and Ridaura each state that they are an officer of an organization
`representing employers who are affected by the wage adjustment requirement. (See id.) They
`state that they were “generally aware of the notice DOL published on its website on January 15,
`2021, [but] the notice did not state that any employers who filed applications on or before
`December 20, 2020 would be required to make payment for back pay owed from January 15,
`2021 through the publication of the 2021 AEWR on February 23, 2021.” (Id. at 24, 27; see also
`id. at 31.) They further state that their organizations’ members relied on that notice and believed
`they were not required to set aside money for backpay. (Id. at 24–25, 27–28, 31.) However, the
`declarations appear to indicate that those employers take issue with plaintiffs’ proposal to remove
`from the May 14, 2021 order’s clause the limiting language “who submitted job orders and
`applications for H-2A labor certification between December 21, 2020 and February 23, 2021.”
`(See id. at 24, 27, 29.) As discussed above, the court is not granting plaintiffs’ request to remove
`that limiting language from the order. Accordingly, the court does not find that the concerns
`raised in the Resnick, Marsh, and Ridaura declarations are relevant in considering the adequacy
`and fairness of the January 15, 2021 notice.
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` Indeed, in the court’s view this intention was made clear to counsel given the context of the
`discussion at the hearings and the court’s focus on those employers who had already made their
`labor commitments before the court’s December 23, 2020 order was issued.
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`Case 1:20-cv-01690-DAD-JLT Document 74 Filed 06/11/21 Page 7 of 8
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`No. 64 at 11.)
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`For the reasons set forth above, the court amends its May 14, 2021 order (Doc. No. 58) to
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`now provide as follows:
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`1.
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`Plaintiffs’ motion seeking an extension of the court’s previously granted
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`preliminary injunctive relief in the form of equitable restitution (Doc. No. 44) is
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`granted;
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`2.
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`In light of proposed intervenors’ pending motion to stay (see footnote 2; Doc. No.
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`69), the court will sua sponte grant a limited stay as follows: Defendants’
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`compliance deadline as set forth in this order immediately below is hereby stayed
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`until the court issues a separate order ruling on the pending motion to intervene
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`and lifts this limited stay (Doc. No. 70);
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`3.
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`Within fourteen (14) days of the lifting of this limited stay, defendants are directed
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`to notify state workforce agencies, employers, and the public of the following:
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`a.
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`H-2A employers who submitted job orders or applications for H-2A labor
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`certification between December 21, 2020 and February 23, 2021 are
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`required to make wage adjustment payments to qualifying H-2A workers
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`and U.S. farmworkers in corresponding employment who worked during
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`the period from January 15, 2021 to February 23, 2021 and received an
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`hourly wage below the geographically applicable 2021 AEWR;
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`b.
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`Each wage adjustment payment must equal the total number of hours a
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`farmworker worked from January 15, 2021 and February 23, 2021
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`multiplied by the difference between the wage received and the
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`geographically applicable 2021 AEWR;
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`c.
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`Those H-2A employers are required to make wage adjustment payments to
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`the qualifying H-2A workers and U.S. farmworkers in corresponding
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`employment within sixty (60) days of defendants having provided the
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`notice required by this order;
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`4.
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`Defendants shall further notify all H-2A employers covered by the court’s order
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`that they (1) are responsible for maintaining accurate and adequate earnings
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`records, consistent with 20 CFR 655.122(j), to establish compliance with the
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`equitable restitution obligation specified in the court’s order, and (2) must certify
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`compliance with the wage adjustment requirement in a manner determined by the
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`Department of Labor;
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`5.
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`The undersigned will not consider any additional applications (as opposed to
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`motions for reconsideration) seeking further clarification of the court’s orders
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`absent a compelling showing of good cause4; and
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`6.
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`This case is hereby set for a status conference on Tuesday, June 15, 2021 at 2:00
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`p.m. Pacific Time to discuss how to proceed in light of proposed intervenors’
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`pending motions. Counsel for all parties, including counsel for the proposed
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`intervenors must appear at that date and time by video. The undersigned’s
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`Courtroom Deputy Jami Thorp (jthorp@caed.uscourts.gov) will email the parties
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`with log-in information before the conference. In light of the clarifications made
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`in this order to the court’s May 14, 2021 order, should the proposed intervenor
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`elect to withdraw the pending motions to stay and intervene prior to the scheduled
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`status conference, that conference will be vacated.
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`IT IS SO ORDERED.
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` Dated: June 11, 2021
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`UNITED STATES DISTRICT JUDGE
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`4 Counsel in this case are well aware of the well-publicized and critical shortage of judicial
`resources this district has endured unabated for over sixteen months. As of the end of April 2021,
`the undersigned’s two full caseloads included a total of 1,267 civil cases and over 720 criminal
`defendants, and those numbers are growing monthly. This crisis situation is not conducive to the
`fair administration of justice. The court is doing the best it can which, as evidenced by some of
`the discussion above, is not always good enough. However, and unfortunately, the undersigned
`simply cannot afford to devote additional time to this matter on a shortened time frame basis
`given the court’s other obligations.
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