Your H-2A Backpay Clock Started on September 2

Most H-2A employers know a court ruled against the Department of Labor's wage methodology this year. Fewer have noticed that the window now has both ends marked, and that something changes on December 30 whether or not DOL is ready.

What happened, in order

In United Farm Workers v. U.S. Department of Labor, the U.S. District Court for the Eastern District of California held DOL's October 2025 Adverse Effect Wage Rate Interim Final Rule unlawful under the Administrative Procedure Act. The court found DOL had not reasonably considered whether the rule met its statutory obligation to protect domestic workers' wages.

That August ruling did not throw the rule out. It remanded, and it ordered DOL to notify employers that they may be required to pay backpay. OFLC posted that notice on September 2, 2026 — the date your exposure starts.

Then on October 2 the court issued a second order, and this is the one most employers have missed. Two sentences matter:

Defendants shall issue a new interim final rule by December 30, 2026.

The IFR is vacated effective December 30, 2026.

A deadline, and a vacatur on the same day.

Why December 30 matters more than the deadline itself

Read those two lines together. DOL must publish a replacement by December 30, and the existing rule stops being law on December 30 regardless.

If DOL publishes on time, you get new rates and the court takes up the backpay question. If DOL misses, the 2025 methodology is vacated with nothing underneath it. Either way, the rules you are operating under today have an expiration date, and it is nine weeks out.

The parties are filing joint status reports every three weeks until the new rule issues. Those are your early warning on whether DOL is on schedule.

Expect the date to move, and know which half can move

DOL misses deadlines. Anyone who has waited on a prevailing wage determination knows it, and nothing about this case makes the agency faster. Plan on the possibility that December 30 comes and goes without a new rule.

But be precise about what can slip. The publication deadline is DOL's. The vacatur is the court's. DOL being slow does not extend the vacatur — only the court can do that, by granting an extension, a stay, or relief on appeal.

So there are three realistic paths:

• DOL publishes on time. New rates, and the backpay question gets briefed.
• DOL asks for more time and the court grants it. Both dates move together, and your exposure window gets longer, not shorter.
• DOL misses and the vacatur holds. The 2025 methodology is gone with nothing to replace it, which is the messiest outcome for everyone and the one DOL has the most reason to avoid.

Watch the status reports for an extension motion. That is the single clearest signal of which path you are on, and it will show up well before December 30.

Why the number probably goes up

The methodology the court rejected lowered rates in several ways. It split workers into two tiers, paying level I at the 17th wage percentile and level II at the 50th, with DOL expecting more than 90% of H-2A workers to land in level I. It adjusted the hourly rate down to account for employer-provided housing. And it drew on OEWS data covering only farm labor contractors, after the USDA Farm Labor Survey was discontinued.

The plaintiffs argued those choices produced AEWRs below what the statute requires. The court agreed DOL had not justified them. A methodology written to answer that ruling is therefore more likely to raise rates than lower them.

The part most employers miss

Backpay exposure is not limited to your H-2A workers.

OFLC's notice is explicit that wage adjustments may be owed to H-2A workers and to U.S. workers in corresponding employment. If domestic employees are doing substantially the same work on the same job order, they are in the same calculation. For most operations that is a considerably larger payroll universe than the visa workers alone.

You can size this now

This is what changed with the October order. Before it, the exposure window had no end at all. Now it has a floor: at least September 2 through December 30, roughly four months. If the date slips, the window gets longer — but it cannot get shorter.

So run the arithmetic on that floor. Pull total hours for H-2A workers and corresponding U.S. workers across the window, multiply by a plausible per-hour increase, and reserve against it. Then model it again with another sixty or ninety days on the end, because that is the realistic slippage case.

You will not get the number exactly right. You will be in the right order of magnitude, which is the difference between a manageable quarter and a surprise.

The hard part isn't the money

If backpay is ordered, writing the check is the easy half. The difficult half is finding people.

A worker who finished your season in October and went home is still owed the adjustment. So is the U.S. employee who moved on in November. If you cannot locate them, the obligation does not go away — you just have a worse problem.

This is why OFLC's guidance leads with recordkeeping rather than reserves. The instruction is to maintain complete and accurate records for H-2A workers and U.S. workers in corresponding employment, including contact and other identifying information.

Read that as what it is: the agency telling you in advance that you will be asked to find these people later.

What to do before December 30

Confirm you can reach everyone who worked after September 2. Phone numbers, addresses, email where you have it, for H-2A and corresponding U.S. workers both. Gaps close much more cheaply now, while people are still reachable.

Pull hours by worker for the window. You want to produce those totals on demand, not reconstruct them under deadline.

Reserve against a modeled increase. See above — the hours are now a known quantity.

Don't change what you're paying. Current AEWRs remain in effect until December 30, and DOL's September notice states plainly that no employer is currently obligated to pay back wages. Paying something other than the posted rate in anticipation of a ruling creates a problem you don't have yet.

What's still genuinely unknown

Whether backpay is actually awarded. The court has not decided that, and it will take it up after the new rule issues.

What the new rates are, and whether DOL meets the date — which, on the agency's record, is genuinely open.

What is no longer unknown is that there is a date at all, and that the rule you are working under today expires on it. We should know considerably more by year end. Plan as though we will, and watch the status reports in case we don't.