DOL Publishes Updated AEWRs for H-2A Range and Non-Range Occupations

The U.S. Department of Labor has published two Federal Register Notices (FRN) reflecting the updated Adverse Effect Wage Rates (AWER) applicable to Range and Non-range H-2A occupations respectively. The Range FRN will update the AEWR that applies to all range H-2A job opportunities, which is determined using the Bureau of Labor Statistics (BLS) September 2024 Employment Cost Index (ECI). The Non-range FRN will update the AEWRs that apply to the majority of non-range H-2A job opportunities which are determined using the USDA’s annual Farm Labor Survey (FLS).

Range FRN

Effective January 1, 2025, any H-2A employer certified or seeking certification to employ workers to engage in the herding or production of livestock on the range must pay each worker a wage that is at least the highest of the various wage sources listed in § 655.211(a)(1), including the monthly AEWR of $2,058.31, at the time work is performed on or after the effective date of the FRN. DOL has promulgated separate H-2A regulations governing range job opportunities given the unique nature of such work.

Non-range FRN

In late-November 2024, the USDA released its annual Farm Labor Survey (FLS) wage data report for which DOL historically relies upon when updating the AEWRs for upcoming year. On December 12th, DOL previewed the updated AEWRs for each state (reflecting the minimum hourly wage rate employers must pay to workers performing job tasks/activities encompassed within one or more of the “Big Six” Standard Occupational Classification (SOC) codes.

The Big Six codes include:

• Farmworkers and Laborers, Crop, Nursery, and Greenhouse (45-2092);

• Farmworkers, Farm, Ranch, and Aquacultural Animals (45-2093);

• Agricultural Equipment Operators (45-2091);

• Packers and Packagers, Hand (53-7064);

• Graders and Sorters, Agricultural Products (45-2041); and

• All Other Agricultural Workers (45-2099).

DOL also recently reported that 96% of all job opportunities certified in 2024 resulted in H-2A and domestic workers in corresponding employment receiving a Big Six SOC code.

Quick Hits

• 4.5% national increase over 2024 wages to $17.74/hr.

  • *Same rate that will now be used to calculate surety bond amounts for H-2ALCs

• Hawaii reported the highest single wage at $20.08/hr.

• Great Lakes (Michigan, Wisconsin, Minnesota) was the only region to see wage decrease by 1.9% ($18.50 to $18.15/hr).

When do the updated AEWRs take effect?

Either December 16 or 30, 2024, depending on which state(s) the place of employment is or will occur. Employers are required to offer and pay the updated AEWR as soon as it becomes effective.

While the FRN initially states that the new wages are effective as of December 16, 2024, it subsequently clarified that regarding any work performed at a location within any of the 17 states subject to the Southern District of Georgia’s preliminary injunction order in Kansas et. al. v. U.S. Department of Labor, including AR, FL, GA, ID, IN, IA, KS, LA, MS, MT, NE, ND, OK, SC, TN, TX, VA, employers will receive the benefit of a 14-day notice period before the updated AEWRs will carry force of law on December 30, 2024, because DOL is currently prohibited from enforcing the Farmworker Protection Rule in those 17 states, including the new “effective upon publication” obligation for employers to immediately pay the workers the updated AEWR. Conversely, for work performed at places of employment located in any of the 33 states that are not subject to the Kansas Order, the effective date applicable is December 16th.

Is there a chance that the DOL could seek to withdraw the Farmworker Protection Rule following the injunction/stay orders issued against DOL by federal courts in Georgia, Kentucky, and Missouri?

Unlikely at this time despite the H-2A stakeholder community’s continued urging for DOL to do so. As a footnote to the FRN indicates, DOL has apparently decided to continue its defense and enforcement efforts of the Rule notwithstanding its patchwork status or ever-increasing likelihood that it will be struck down in its entirety by one of the four presiding district courts:

“Neither the preliminary injunction issued in Barton, et al. v. U.S. Department of Labor, et al., No. 5:24-cv-249-DCR (E.D. Ky., Nov. 25, 2024), nor the Section 705 stay issued in International Fresh Produce Association, et al. v. U.S. Department of Labor, et al., No. 1:24-cv-309-HSO-BWR (S.D. Miss., Nov. 25, 2024) affect DOL's implementation or enforcement of 20 CFR 655.120(b)(2) as to the parties or entities subject to those orders.”

Until the H-2A stakeholder community receives any evidence or indication to the contrary, it’s full steam ahead on the litigation train.

What if an AEWR update falls in the middle of my pay period?

In published guidance regarding the Farmworker Protection Rule, DOL has advised that it “will not take enforcement action against you if you can demonstrate it was impossible to update payroll before the next scheduled pay date and you provide retroactive pay for the difference in the following pay period.” However, given that this guidance preceded the issuance of the Kansas Order, employers who are afforded the benefit of 14 days’ advance notice should be prepared to demonstrate their timely compliance to DOL in an audit.

I have work being performed currently or in the near future at places of employment that are located within one of the three states (MI, WI, MN) that experienced a wage rate decrease via updated AEWRs published by DOL. Can I pay my workers the lower wage rate upon it taking effect?

The decreased wage rates in these three states do not apply to any active work contract (i.e. post-certification stage) that previously guaranteed a higher wage rate to workers. Instead, the employer must continue to honor the higher wage rate through the remainder of the contract. 

Rule of Thumb: Updated AWERs can only result in higher pay to workers, never lower.

To realize the benefit of a lower wage rate, employers should immediately submit a pre-certification amendment request to DOL with regard to any pending job order/application. While employers may still seek to withdraw an application/job order that has progressed to post-certification stage, an employer is still obligated to comply with the terms and conditions of employment contained in application/job order with respect to all workers recruited in connection with the job opportunity. Additionally, a post-certification withdrawal often results in significant delays in worker arrivals assuming the employer initiates a new filing for the same job opportunity.

Bulleted list of AEWR rates

• Alabama

  • 2024: $14.68

  • 2025: $16.08

• Alaska

  • 2024: $19.52

  • 2025: N/A

• Arizona

  • 2024: $16.32

  • 2025: $17.04

• Arkansas

  • 2024: $14.53

  • 2025: $14.83

• California

  • 2024: $19.75

  • 2025: $19.97

• Colorado

  • 2024: $16.63

  • 2025: $17.84

• Connecticut

  • 2024: $17.80

  • 2025: $18.83

• Delaware

  • 2024: $17.20

  • 2025: $17.96

• Florida

  • 2024: $14.77

  • 2025: $16.23

• Georgia

  • 2024: $14.68

  • 2025: $16.08

• Hawaii

  • 2024: $18.74

  • 2025: $20.08

• Idaho

  • 2024: $16.54

  • 2025: $16.83

• Illinois

  • 2024: $18.18

  • 2025: $19.57

• Indiana

  • 2024: $18.18

  • 2025: $19.57

• Iowa

  • 2024: $17.79

  • 2025: $18.65

• Kansas

  • 2024: $18.32

  • 2025: $19.21

• Kentucky

  • 2024: $15.14

  • 2025: $15.87

• Louisiana

  • 2024: $14.53

  • 2025: $14.83

• Maine

  • 2024: $17.80

  • 2025: $18.83

• Maryland

  • 2024: $17.20

  • 2025: $17.96

• Massachusetts

  • 2024: $17.80

  • 2025: $18.83

• Michigan

  • 2024: $18.50

  • 2025: $18.15

• Minnesota

  • 2024: $18.50

  • 2025: $18.15

• Mississippi

  • 2024: $14.53

  • 2025: $14.83

• Missouri

  • 2024: $17.79

  • 2025: $18.65

• Montana

  • 2024: $16.54

  • 2025: $16.83

• Nebraska

  • 2024: $18.32

  • 2025: $19.21

• Nevada

  • 2024: $16.63

  • 2025: $17.84

• New Hampshire

  • 2024: $17.80

  • 2025: $18.83

• New Jersey

  • 2024: $17.20

  • 2025: $17.96

• New Mexico

  • 2024: $16.32

  • 2025: $17.04

• New York

  • 2024: $17.80

  • 2025: $18.83

• North Carolina

  • 2024: $15.81

  • 2025: $16.16

• North Dakota

  • 2024: $18.32

  • 2025: $19.21

• Ohio

  • 2024: $18.18

  • 2025: $19.57

• Oklahoma

  • 2024: $15.55

  • 2025: $15.79

• Oregon

  • 2024: $19.25

  • 2025: $19.82

• Pennsylvania

  • 2024: $17.20

  • 2025: $17.96

• Rhode Island

  • 2024: $17.80

  • 2025: $18.83

• South Carolina

  • 2024: $14.68

  • 2025: $16.08

• South Dakota

  • 2024: $18.32

  • 2025: $19.21

• Tennessee

  • 2024: $15.14

  • 2025: $15.87

• Texas

  • 2024: $15.55

  • 2025: $15.79

• Utah

  • 2024: $16.63

  • 2025: $17.84

• Vermont

  • 2024: $17.80

  • 2025: $18.83

• Virginia

  • 2024: $15.81

  • 2025: $16.16

• Washington

  • 2024: $19.25

  • 2025: $19.82

• West Virginia

  • 2024: $15.14

  • 2025: $15.87

• Wisconsin

  • 2024: $18.50

  • 2025: $18.15

• Wyoming

  • 2024: $16.54

  • 2025: $16.83