The Trump Administration’s Adverse Effect Wage Rate interim ruling for H2-A workers is being challenged in court claiming the new calculations will harm foreign guest workers. A coalition of 25 ag groups, including the American Farm Bureau and the North Carolina Chamber, recently filed an amicus brief to the court in support of the AEWR interim ruling. Ray Starling, general counsel for the NC Chamber, says it’s difficult to see where harm would occur.
“The union in this case, the Union of Farm Workers, the plaintiffs in the case, are asking the court to substitute their judgment and the place of the judgment of the Department of Labor, and they’re doing so on a speculative basis, not even clear that they’ve got plaintiffs that are injured and beyond that, are asking the court to do it in an emergency, quick way, and enter a nationwide injunction against what the Trump administration has done. That is not how administrative law is supposed to work. That is not how predictability and certainty work.”
Starling, who also served as Special Assistant to the President for agricultural policy during President Trump’s first administration, says there are a number of reasons why the plaintiff’s arguments shouldn’t be successful here.
One of them is, it’s not even clear how these plaintiffs are going to be harmed. We’ve heard of growers that, notwithstanding a lower Adverse Effect Wage Rate under the new rule, we’ve actually heard a number of farmers are going to continue to pay the amount that they paid last year. In some states, if the minimum wage is higher than the Adverse Effect Wage Rate, you have to pay the minimum wage. You can’t get around the minimum wage just because you have an H2-A worker.”
On the contrary, Starling says, at this point the detriment would be to farmers to change horses in midstream.
“I actually was texting today with a farmer who is putting in his work order for the 2026 growing season. He is doing the math on what he’s going to have to pay, what he’s going to have to provide, how many he’s going to try to bring in and apply for and establish that he needs, and if the entire process gets blown up midstream, I don’t know what you do. Do you reapply? Do you have to dismiss the worker that maybe you did qualify for, and then you’ve got to go back and reapply for another one? You’re going to really generate some chaos here if the judge were to enter a preliminary injunction.”