Court Sets Dec. 30 for New H-2A Wage Rule: Size Your Back Pay Now

By the Thombar team

TL;DR: A federal court has ordered the Department of Labor to publish a new H-2A wage rule by December 30, 2026. Until then, the wage you pay today may not be the final cost of the work, so put a dollar figure on the gap now, before it lands on your cash plan.

What’s happening

On October 2, the court in United Farm Workers v. U.S. Department of Labor ordered DOL to issue a new interim final rule for calculating H-2A Adverse Effect Wage Rates (AEWRs) by December 30, 2026. The current rule stays in effect until that date and is vacated the same day. The parties must file a joint status report on October 22 and every three weeks after that until the new rule is out, according to Western Growers.

This follows an August 26 ruling that found the current wage method “arbitrary and capricious.” DOL had asked for up to six months to write a replacement. The court gave it less than three.

Two things are still unknown: the new method and the new rates. The order also does not settle back pay. As reported by The Packer, DOL has already told employers they may owe back pay from September 2, when it published its notice, until the new rule is released. One labor attorney described that back pay as “the delta between the wage certified under the contract and whatever the new wage is.”

For scale, the 2026 to 2027 national average AEWR under the current rule is $12.31 an hour for Skill Level I and $16.07 for Skill Level II, according to American Farm Bureau Federation analysis.

What it means for your margin and cash

If you run H-2A crews this fall, part of your labor cost is still open. The back pay window from September 2 to December 30 is 17 weeks long. Here is a simple example: a crew of 20 H-2A workers at 50 hours a week. For every $1.00 an hour the new rate lands above your certified rate, that crew owes $1,000 a week, or $17,000 across the full window. Your crew size, hours and the real rate gap will differ, and the gap could be zero. The point is that the exposure grows every week the crew works.

Timing matters too. The new rule arrives at year end, when many growers are paying for inputs, closing books and renewing operating lines. The head of the National Council of Agricultural Employers told The Packer that producers “may have to take out a loan” to cover potential back pay. Growers with contracts starting in December, such as in Yuma, Southern California and Florida, will feel the new rate first.

One thing to do this week

Pull your H-2A payroll from September 2 forward and build a back pay table: hours by worker, certified rate, and what you would owe at $0.50, $1.00 and $2.00 an hour above it. Then do three things with it:

• Hold a matching amount in your year-end cash plan, so a retroactive bill does not collide with input payments.
• Make sure hours are recorded by worker, not just by crew, and that contractor invoices match your time records.
• Keep current contact details for every worker, including those who leave before December 30, so you can pay any amount owed.

Watch the October 22 status report for the first sign of where the new method is heading. For more background on the back pay notice, see the earlier Thombar post, The H-2A back pay clock started September 2.

How Thombar helps

Thombar tracks labor cost by crew and by block, breaks out overtime premium, and checks every line of your Farm Labor Contractor invoices for missing or misrecorded hours, so your back pay table starts from clean numbers.

Sources

• Western Growers: Court Sets December 30 Deadline for New H-2A Wage Rule (Oct. 2, 2026)
• The Packer: Dec. 30 Deadline Looms for New H-2A Wage Rule (Oct. 5, 2026)
• American Farm Bureau Federation Market Intel: AEWR Changes for 2026-2027 (Aug. 6, 2026)
• Example figures ($1,000 a week, $17,000, 17 weeks) computed by Thombar from the stated example inputs and the September 2 to December 30 window.