March 2024 - 23

Deference to the Department of Labor (DOL) was
cited by a magistrate judge in Florida in his Report
and Recommendation to the District Court judge in the
National Council of Agricultural Employers' challenge to
the Adverse Effect Wage Rate (AEWR). The AEWR is the
hourly rate for H-2A workers.
The magistrate judge assumed that the DOL knew what
it was doing when it promulgated a new AEWR rule -
that disaggregated non-farm wages and other wages
disconnected from the market for agricultural wages was
somehow " reasonable. " So the magistrate deferred to the
expertise of the DOL because it must know what it is doing.
Therein lies the challenge that we look to the
Supreme Court to correct. In the case of farm and ranch
families who are impacted by the DOL's regulations, the
lack of any understanding of economic reality belies
the DOL's having a clue, not just that the regulations
promulgated are " unreasonable. "
This is a very important case for agricultural employers.
We have just filed comments on several proposed
regulations where the DOL is seeking to extend its reach.
The " Walkaround Rule " from DOL's Occupational Safety and
Health Administration (OSHA) and the DOL's proposal on
" Worker Protections " are perfect examples of this overreach.
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VEGETABLEGROWERSNEWS.COM | 23
In the former proposal, an OSHA inspector on the
farm or ranch could invite a union organizer to join on
the " walkaround " of the property.
In the latter proposal, the DOL's overreach is
stunning. Not only would it allow union organizers
to " take access " to an agricultural employer's
property (absent compensation for the government's
" taking " of the employer's property for union
organizing), but it also similarly suggests that such
organizing is not preempted by the agricultural
exemption included by Congress in the National Labor
Relations Act of 1938.
Hopefully, the Supreme Court will dispatch the
government's arguments here and allow agricultural
employers to have some protection from agency
overreach. Stay tuned.
Michael Marsh has led the National Council of
Agricultural Employers since 2017. A Wyoming native
and certified public accountant, Marsh worked for a CPA
firm with farm and ranch clients investigating fraud.
He was director of finance for the Almond Board of
California for 7 years and for 15 years was CEO of the
largest U.S. dairy producer trade association.
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March 2024

Table of Contents for the Digital Edition of March 2024
