Update - New H-2A Prevailing Wage
January 26, 2023
New H-2A Prevailing Wage for General Vineyard Work in the Following Counties: Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, Sonoma, and Trinity
Who must pay this new Prevailing Wage?
H-2A employers are required to pay the highest of the following: the Adverse Effect Wage Rate (“AEWR”), the agreed-upon collective bargaining wage, the Federal minimum wage, the State minimum wage, or the Prevailing Wage. The new California AEWR of $18.65 took effect January 1, 2023. However, the California Employment Development Department (“EDD”) recently submitted a new Domestic Agricultural In-Season Wage Report to the Department of Labor (“DOL”) where they determined the new Prevailing Wage for H-2A agricultural workers engaged in general vineyard work (everything leading up to harvest) is $19.65 for workers in the North Coast wage reporting area which includes: Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, Sonoma, and Trinity counties. Since the Prevailing Wage is now higher than the AEWR, employers in the previously mentioned counties must now pay $19.65 to their H-2A workers and their domestic workers in corresponding employment.
When do I need to start paying the new Prevailing Wage?
Employers do not technically have to pay this new rate until they have received notice from the Chicago National Processing Center (“NPC”) but the new wage rate is retroactive to the date it went into effect and the new prevailing wage went into effect on November 8, 2022. Instead of waiting for notice, you should start paying this rate immediately because if you don’t, you will have to correct wage statements, this could trigger waiting time penalties if these workers no longer work for you, you’ll have to find these workers, and you must pay workers the difference (regular pay, overtime, bonuses, etc.) if they were paid less than $19.65 from November 8, 2022 to when you received notice of the new rate.
What if I can’t find an employee to give them their check?
Remember, if you can’t find an employee to give them their last paycheck, document the efforts taken to locate them, and send their check to the California Labor Commissioner so they can hold it in their Unpaid Wages Fund.
How long will the new Prevailing wage be in effect?
The new rate took effect on November 8, 2022 and is effective for one year after it is posted on the AOWL website or until it is replaced with an adjusted prevailing wage, whichever comes first. If a prevailing wage was guaranteed on a job order and that prevailing wage expires during the work contract, the employer must continue to guarantee at least the expired prevailing wage rate.
We’ve heard that some employers are fighting this new Prevailing Wage, but relief is not likely to come anytime soon. We do not recommend ignoring the new Prevailing Wage in the hopes it will go away or be invalidated.
How do I find Prevailing Wage rates?
Prevailing wages are posted by the Office of Foreign Labor Certifications (“OFLC”) to the Agricultural Online Wage Library (“AOWL”) website: https://www.foreignlaborcert.doleta.gov/aowl.cfm. Employers should check this website regularly as the prevailing wage is effective immediately once posted.
How are Prevailing Wage rates determined?
The California EDD claims it does wage surveys twice a year, after harvest and then again for pre-harvest or general vineyard work. EDD will likely do the harvest prevailing wage survey in January 2023; it usually takes a month to complete, and the findings would likely be sent to DOL towards the end of February 2023. Once a new Prevailing Wage has been approved by DOL, it will be posted to the AOWL website as stated above. EDD generally only reaches out to employers via email and the reports are based on the information obtained from the employers that respond. If employer participation is low, the numbers could be skewed either high or low. If more employers participate, the numbers may be more accurate. You may need to check your spam folders to find an email from the EDD. Employers who pay unusually high wages may skew the prevailing wages to a higher amount if they respond to EDD’s survey.
I do not directly employ any H-2A workers so I’m in the clear, right?
If you do not directly employ H-2A employees but use a Farm Labor Contractor (“FLC”) who provides you with H-2A workers, this does not guarantee you are in the clear. Growers and FLCs are frequently found to be joint employers with their FLCs; if you are found to be a joint employer with your FLC then this is another way to establish that the H-2A workers are your employees too. This is a fact intensive analysis that must be done on a case-by-case basis, so please contact Rosasco Law Group for a joint employment analysis.
Once joint employment has been established, then employers need to know how to determine which domestic workers fall into the “corresponding employment” category because domestic workers in corresponding employment are entitled to the same wage rates as the H-2A workers (this might also include offering the same benefits offered to H-2A workers such as housing, meals, and/or transportation). This is a complex area of law and answers will depend on the facts and circumstances unique to each employer. Please reach out to Rosasco Law Group for further assistance.
We will keep an eye out for a new harvest prevailing wage in the North Coast region and will continue to keep you updated on new developments. If you have any questions about wage and hour issues, please contact Rosasco Law Group APC.
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