Are you paying at least the highest of: AEWR (H-2A) or prevailing wage (H-2B), the federal/state minimum, the agreed-upon contract rate, or the actual wage paid to similarly employed U.S. workers?
The AEWR (Adverse Effect Wage Rate) is republished annually for each state and crop activity under 20 CFR § 655.103(b). California 2025 AEWR for general farmworkers is $19.75/hour — and the *highest of four wages* requirement means a piece-rate worker producing $25/hour effective rate gets $25, not $19.75. Underpayment is per-worker, per-pay-period, and Wage and Hour Division's standard remedy is full backwages plus liquidated damages plus a 3-year H-2 program debarment.
Context & Examples
Real example — Modesto stone-fruit grower. Our client paid AEWR base of $19.75/hour but ran a piece-rate bonus structure where high producers earned $26/hour effective rates. We built a payroll audit system (custom Excel + Greenshades export) that flagged any pay period where the effective rate dipped below the highest-of-four threshold for any worker. In 2024 the system caught 3 underpayment incidents (totaling $187 across the season) which we cured the next pay period — well below DOL's enforcement threshold and documented as good-faith compliance.
Horror story — same county, different grower. A 2022 DOL Wage and Hour audit of a Modesto cherry grower found systematic AEWR underpayment for 14 workers across 11 pay periods (the grower had used the prior year's AEWR rate for 6 weeks before updating). Backwages: $43,000. Liquidated damages: $43,000. Civil penalty: $11,000. 3-year H-2A debarment. The grower lost the next 3 cherry seasons and exited H-2A entirely.
Why an attorney is essential: The AEWR changes every January. We calendar the change, audit the first three pay periods of every new rate, and run a quarterly payroll audit that catches the rounding errors before DOL does.
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