United Farm Workers v. U.S. Department of Labor

On Sept. 30, 2020, the U.S. Department of Agriculture published what a federal judge later described as a "cursory, one-page notice" canceling the biannual Farm Labor Survey of farmworker employment statistics and wages that it had been conducting for more than a century.

A team of Wilmer Cutler pro bono attorneys led by Mark Selwyn quickly took action. On Oct. 13, they sued for a preliminary injunction to stop the USDA action. U.S. District Judge Dale Alan Drozd in Fresno heard the case a week later and granted the injunction a week after that. United Farm Workers v. U.S. Department of Agriculture, 1:20-cv-01452 (E.D. Cal., filed Oct. 13, 2020).

The case was important because the federal Department of Labor uses the Farm Labor Survey to promulgate its annual Adverse Effect Wage Rate, which sets the minimum wages farms must pay workers if they employ immigrant guestworkers under the H2-A visa program.

Gregory H. Lantier

The minimum wages set by the AEWR, which vary by region, have "served to protect United States farmworkers and foreign agricultural guestworkers from wage suppression," Selwyn said.

Then on Nov. 5, the Labor Department issued a final rule suspending the wage rate program for two years and freezing the AEWR at its then-current levels. That would have resulted in a "huge wage loss for the affected farmworkers in California and the other states," Selwyn said. "By the [Labor Department's] own calculations, that number was well into the hundreds of millions of dollars." Specifically, the agricultural workers would have been deprived of about $564 million in pay over those years.

So he and his team, aided by attorneys from the Farmworker Justice advocacy group, sued the Labor Department. The California attorney general's office also filed an amicus brief that Selwyn considered important for its poignant argument that it would be "a cruel irony indeed that while farmworkers are relied upon to keep the nation's food supply moving, the food security of their own households is threatened by this rule."

Drzod enjoined the AEWR freeze on Dec. 23, 2020. And on April 4 last year, he granted Selwyn's team summary judgment against the department. United Farm Workers v. U.S. Department of Labor, 1:20-cv-01690 (E.D. Cal., filed Nov. 30, 2020).

Granting the motion "had the effect of vacating the rule that would have immediately lowered the wages of the affected farmworkers," Selwyn said.

Nick Werle

Selwyn and his team became involved in the pro bono matter because of his experience with the Administrative Procedures Act, which is what Drozd relied upon to grant the injunctions and summary judgment.

Specifically, he found that the Labor Department had not followed the act's requirements for public notice and comment and that it had not offered a reasonable explanation for why the rule change was needed in the first place.

Most importantly, the judge held that the department's new rule "is arbitrary and capricious because it contravenes the Immigration and Nationality Act ... by failing to protect United States workers against adverse effects to their wages and working conditions."

Michael Gaffney, the Justice Department attorney who represented the government in the two cases, could not be reached to comment on the case.

-- Don DeBenedictis