USDA Wants to End Farm Labor Survey

OMAHA (DTN) -- The Trump administration last week moved to disrupt how wages are set for temporary guest workers on farms.

Groups representing farm employers are praising the moves, which they say will provide labor relief to farmers, though groups representing farm workers will likely challenge the decisions in court.

The U.S. Department of Agriculture announced it will end the Agricultural Labor Survey just days after a federal judge in Louisiana threw out the Biden administration's wage rule for H-2A workers that failed to use the long-standing USDA survey.

USDA's National Agricultural Statistics Service on Thursday posted a notice it would end collection of the Agricultural Labor Survey (known as the Farm Labor Survey, or FLS). The FLS is conducted twice a year, collecting wage data from about 18,000 farms nationally. USDA has been publishing data on farm labor and wages since 1910.

In a notice set to be published in the Federal Register, USDA cited the department has discontinued the FLS with approval from the White House. USDA stated there is no actual statutory requirement that USDA conduct the Farm Labor Survey. Ending the survey would end some federal duplicity and reduce costs as well. USDA also cited the Department of Labor has made changes to its Occupational Employment and Wage Statistics (OEWS) that "make the OEWS the superior barometer for measuring farm wages."

Yet, USDA's decision comes just after a federal judge in Louisiana threw out a 2023 Department of Labor rule that used the OEWS to increase wages for seasonal farmworkers. The Labor Department followed the court ruling by announcing it would vacate the 2023 rule. Instead, the Labor Department announced its Adverse Effect Wage Rate (AEWR) would revert to the 2010 rule, which relied solely on the Farm Labor Survey to set wages for H-2A workers.

The U.S. Department of Labor sets the AEWR every year based on data provided by the FLS.

Essentially, USDA and the Labor Department moved in opposite directions on the same day. The Labor Department announced it would go back to using data from the FLS on Thursday while USDA published its notice that it would no longer conduct the survey but instead leave it up to the Labor Department's OEWS to report farmworker wages.

The situation creates a regulatory vacuum for the Labor Department, which will need to write a new rule for the 2026 AEWR, which affects about 350,000 H-2A workers and more than 22,000 farms, according to DOL data.

Farm groups have increasingly complained about the AEWR with H-2A wages now averaging from $14.83 to over $19.80 an hour depending on the state.

NCAE APPLAUDS DECISION

The National Council of Agricultural Employers (NCAE) stated the group, its members and "the agricultural community nationwide are celebrating" that USDA plans to end the FLS, which "will give much-needed relief to America's farmers and ranchers."

NCAE said the FLS has been "historically misused" to set wages by the Labor Department.

"For years," explained Michael Marsh, NCAE's President and CEO, "federal regulators forced America's farm and ranch families to pay an escalating, imaginary wage. For years, NCAE and our members fought to have the Department put an end to misusing the FLS as a wage setting mechanism for H-2A workers."

Marsh added, "This is an exciting announcement and opportunity for America's rural community to bounce back from years of regulatory abuse. Discontinuing the FLS finally gives America's farmers and ranchers a real chance to be competitive with foreign competitors."

NCAE argued that decisions made by the Labor Department to set wages for farm workers mean those workers were paid more than new recruits to the military. The FLS also escalated wages at a faster pace than cost of living adjustments for Social Security.

Ideally, Marsh said in an email to DTN, agricultural employers see the AEWR is not necessary, and it is also unlawful. The moves by USDA and DOL will allow the market to set wages, rather than a government mandate, he said.

"We are hopeful that this discontinuation, in conjunction with the Louisiana decision and DOL's subsequent announcement, will mean, finally, that the market will be allowed to determine wage rates rather than a wrong-headed bureaucratic mandate," Marsh said. "Markets work if the government will let them."

LOUISIANA CASE

Louisiana sugarcane farms and other farm organizations sued the Labor Department in 2023 arguing DOL should not have used the OEWS but should rely on the Farm Labor Survey to set wages for agricultural truck drivers.

"It is appropriate that the DOL refer to the FLS when assigning wage rates for agricultural truck drivers because wage data from that data source has been reliable and is a measure that could establish wages that comply with the Immigration and Nationality Act," the farm plaintiffs stated when the case was filed.

DOL's 2023 rule had required farms to pay higher wages to agricultural workers who were reclassified as heavy truck drivers. That required DOL to use a wage rate outside of the Farm Labor Survey and instead set wages -- higher wages -- based on the OEWS.

The 2023 rule had determined that workers would be paid the highest wage among multiple classifications of jobs. A H-2A worker who cut sugarcane in a field but also drove a truck or heavy equipment would be paid the wage for an equipment driver. That bumped up wages for some workers to more than $25 an hour.

"Under the Final Rule, these types of H-2A workers will be re-classified as Heavy and Tractor-Trailer Truck Drivers," the lawsuit stated. "Because there is no wage data for this occupation under the FLS (because it is not an agricultural job), the DOL will use the wage data under the OEWS to determine the AEWR for such workers."

In the lawsuit, the Louisiana farms and groups said DOL should defer to the Farm Labor Survey because farm workers are seasonal not year-round. Thus, relying on the OEWS set significantly higher wages and the farm groups in the lawsuit maintained the wage data used in OEWS, which the Louisiana farms called "unreliable surveys," were used to impose higher wages on seasonal farm workers.

U.S. District Judge Robert Summerhays for the U.S. District Court in the Western District of Louisiana vacated the rule last week, converting a preliminary injunction into a permanent injunction against the 2023 rule.

2020 ATTEMPT TO DROP FLS

This isn't the first time the Trump administration has tried to end the Farm Labor Survey. USDA moved to end the survey in 2020, arguing again there were other data sources that could be used for farm labor. United Farm Workers immediately sued in a California federal court blocking USDA from ending the survey. The judge in that case ruled the Labor Department would not be able to carry out its statutory and regulatory obligations without the FLS data.

United Farm Workers maintained at the time that without the FLS, workers would end up seeing their wages cut to the federal or state minimum wage laws.

DTN reached out to farm labor groups but did not receive an immediate response.

Also see DTN's Special Ag Labor Coverage: https://www.dtnpf.com/…

Chris Clayton can be reached at Chris.Clayton@dtn.com

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