[00:00:00] Speaker 00:
Case number 20-5163, Over the Vest Nurseries LP, a balance, versus Eugene Scalia in his official capacity as United States Secretary of Labor at L. Mr. Lake for the balance, Mr. Goldsmith for the appellees.

[00:00:16] Speaker 04:
Mr. Lake, please proceed when you're ready.

[00:00:19] Speaker 02:
Good morning, and may it please the court.

[00:00:20] Speaker 02:
My name is Monty Lake, and I appear on behalf of Over the Vest Nurseries.

[00:00:25] Speaker 02:
The issue before the court this morning is the validity of the Department of Labor's 2010 corresponding employment rule under the Supreme Court Chevron standard and the Administrative Procedures Act's arbitrary and capricious standard.

[00:00:42] Speaker 02:
In 2010, the Department of Labor changed its rule on corresponding employment to basically state that any work, any task performed by a U.S.

[00:00:53] Speaker 02:
worker

[00:00:54] Speaker 02:
that was the same as an H2A foreign worker deserved to be paid the same adverse effect wage rate.

[00:01:02] Speaker 02:
This was a significant departure from the rule that had been in effect for 21 years since 1987, issued contemporaneously with the Immigration Reform and Control Act of 1986 that used the statutory language occupations as a standard against which to measure whether or not there was corresponding employment

[00:01:24] Speaker 02:
between US and foreign workers.

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This change was made in 2010 with a statement that the department was really returning to the 1987 rule.

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There had been a brief interlude in 2008 when the rules essentially the same except for two problems that the department had a problem with.

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One of which was the allowance of incidental employment outside of the job description approved by the Department of Labor.

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It corrected that problem

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in the 2010 rule, eliminated it, but then went on to use the any work standard.

[00:02:01] Speaker 02:
Our view, and we believe the law supports the fact that this change is not an interpretation of the statute.

[00:02:08] Speaker 02:
It is really an amendment of it because it takes out the able, willing, and qualification standard of the law.

[00:02:17] Speaker 03:
Over to Vest, unlike many in agriculture, has very high- Can I ask you a question that's about just

[00:02:24] Speaker 03:
understand your argument and the claim.

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Is it your contention that removing in the occupations or in the same occupations, removing that language, did anything different or in addition to

[00:02:50] Speaker 03:
adding the, in any work language?

[00:02:55] Speaker 02:
Well, the, yes, the occupation is what the department of labor, when it looks at a job order, an application to participate in the program, it's the gatekeeper.

[00:03:06] Speaker 02:
When it looks at the occupation, it is looking at all the duties described in the job order, the skilled duties in the case of order best, order pollers, or it can be a farm that has pepper pickers, and that's all they do.

[00:03:21] Speaker 02:
in which case everyone does the same thing that is an easy judgment to make.

[00:03:28] Speaker 02:
When you have the situation with over divest where you have individuals who have to identify over 2000 varieties of plants and then match them with their Latin botanical names from customer orders, this is highly skilled work.

[00:03:44] Speaker 02:
And so different occupations are different.

[00:03:47] Speaker 02:
The statute talks about occupations or crops.

[00:03:50] Speaker 01:
Council, before you go into the policy arguments you're making, isn't it crystal clear what the actual operative language of 2010 says, the 2010 regulation?

[00:04:06] Speaker 01:
Put aside the preamble, the reference to job order.

[00:04:14] Speaker 01:
Isn't it crystal clear what the actual operative language

[00:04:20] Speaker 01:
of the 2010 regulation says, you may argue that it's improper for one reason or another, but it is crystal clear, is it not?

[00:04:30] Speaker 02:
Yes, the language is clear.

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It says any work.

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And we do not argue under our that there was ambiguity as to what the.

[00:04:39] Speaker 01:
Let's put aside the preamble, which is really not relevant.

[00:04:43] Speaker 01:
OK, so so we we can accept then the language is clear.

[00:04:50] Speaker 01:
You were on notice as to what the language said.

[00:04:53] Speaker 01:
Your argument is somehow it's inconsistent with the statute or somehow arbitrary and capricious.

[00:05:01] Speaker 01:
But there's no question you were under notice.

[00:05:05] Speaker 02:
Well, the rule was there.

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Our client was not aware that the rule had changed.

[00:05:11] Speaker 01:
And in fact, he had- That and 10 cents to get you on the trolley car.

[00:05:18] Speaker 01:
If the client

[00:05:19] Speaker 01:
Didn't hire a lawyer to read it.

[00:05:21] Speaker 01:
That's his problem.

[00:05:24] Speaker 02:
Well, your honor, I agree with you that the language of the rule is clear.

[00:05:28] Speaker 02:
The question is whether you know as it was applied to our client than the first time he was aware of it.

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And he had basically had the same job order approved by the department for 12 or 13 years up until this point.

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It's his first opportunity to challenge the legality of the rule itself based on the statute.

[00:05:52] Speaker 01:
Well, I want you to eliminate any question of notice because it's irrelevant.

[00:05:57] Speaker 01:
The regulation was crystal clear.

[00:06:00] Speaker 01:
And if count and if your client didn't hire a lawyer to read for him,

[00:06:04] Speaker 01:
That's no excuse.

[00:06:08] Speaker 01:
So why don't you just eliminate that from the argument?

[00:06:12] Speaker 02:
Well, our argument, you know, taking, you know, our point we go to is that the Department of Labor approved this job order from 1999 through 2012.

[00:06:27] Speaker 02:
And there was no enforcement action taken against it based on

[00:06:31] Speaker 01:
But again, that in 10 cents gets you on a trolley card.

[00:06:34] Speaker 01:
The question is what the regulation means and were you on notice of it?

[00:06:39] Speaker 01:
And the answer to both questions is yes.

[00:06:42] Speaker 01:
It's perfectly clear what it means and you were on notice.

[00:06:45] Speaker 01:
So the fact that in a Department of Labor official before that regulation was unclear as to what the meaning was is irrelevant.

[00:07:00] Speaker 02:
The question, Your Honor, here, though, is whether or not it withstands scrutiny under Chevron and the Administrative Procedure Act in terms of being a violation of the statute upon which it is based.

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And our argument is very simply is that if you look at the statutory language,

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which states basically we have two provisions here.

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We have the able, willing and qualified, which has been written out of the statute by this regulation.

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And we have the similarly employed US worker language.

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The common thread between both of these statutory phrases is labor or services.

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The labor services in the similarly employed language upon which the department relies

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references that enable willing, which references the petition and the petition is accompanied by the job order and application with a specific duties specified by over the best.

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And in this particular case, and it was certified and approved for 13 years up to this time by the department of labor before this issue was raised.

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And we believe very strongly that the

[00:08:09] Speaker 01:
But Council, keep going back to what the situation was before the regulation was passed.

[00:08:15] Speaker 01:
And I keep saying, Lou, and I don't understand you to say anything different, it's irrelevant.

[00:08:23] Speaker 02:
Well, the question is whether or not the statute can withstand scrutiny in terms of whether, excuse me, the rule under the

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the provisions of the statute.

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And that has been our argument in this case that it is not.

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The language able, willing, and qualified has to mean something.

[00:08:42] Speaker 01:
Yes, something for the first section, but not the second section.

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But they are interrelated.

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The Department

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has made the argument accepted by the district court that the rule in this case is based upon the similarly employed language strictly.

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They believe that the qualification language is irrelevant, but their purpose they rely upon is protecting US workers.

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And they ignored the adequacy of the labor force, which was the other purpose, which in Dole

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stated had to be balanced.

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You had to look at both of them and you can't justify the effect of its rule.

[00:09:25] Speaker 02:
The effect of this rule is as discrimination.

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It separates those who apply and are not qualified, who do not have to be hired and paid anything.

[00:09:35] Speaker 01:
And those who... I don't read it that way council.

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I don't read the adverse effects section, the second section of the statute as tied to the first section at all.

[00:09:50] Speaker 01:
The first section asks the question, are there available workers to do this job?

[00:09:57] Speaker 01:
The second question is, second statutory section says, even if there are, there should not be an adverse effect on them.

[00:10:08] Speaker 01:
Even if there are no, even if there are no able, willing workers available to do this job, nevertheless, we wish to protect against adverse effects.

[00:10:21] Speaker 01:
adverse effect to conditions as well as wages.

[00:10:26] Speaker 01:
And if the foreign workers perform work that would otherwise be performed by domestic workers, that hurts them.

[00:10:42] Speaker 01:
That takes away their job opportunities.

[00:10:45] Speaker 02:
Well, your honor, that's not the case here because you had highly skilled workers who did the substantial majority of their job doing these highly skilled tasks.

[00:10:54] Speaker 01:
Yes, and so far as they've performed any other task that would otherwise be performed by domestic workers who are not able, willing to do the highly skilled work, insofar as they're doing that work, they're taking it away from the domestic employees.

[00:11:14] Speaker 02:
Well, two responses to that.

[00:11:16] Speaker 02:
Number one, basically the client was doing what the Department of Labor wanted them to do when it attacked the 2008 rule, which basically the department had a problem with the incidental employment and the client put that- I do not understand, counsel, why you keep going back to 2008.

[00:11:35] Speaker 01:
The question is what the 2010 modified regulation means.

[00:11:42] Speaker 02:
But I was trying to respond to your question about whether or not the similarity and doing a few minor tasks in common was adversely affecting them.

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And what the Over the Best was trying to do was what the department wanted them to do was have full disclosure in their job order when it was advertised for domestic workers to apply for the job.

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And because there would be times

[00:12:08] Speaker 02:
there would be overlap in the duties when they essentially are working as a team in the workplace, they wanted to protect themselves from debarment.

[00:12:17] Speaker 02:
And that is a specific provision in 2008 that the department eliminated.

[00:12:23] Speaker 02:
Our client was doing exactly what they wanted to do since they entered the program in 1999.

[00:12:30] Speaker 02:
They were doing exactly what the department wanted them to do.

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And the department approved the job order that had the incidental duties in addition to the highly skilled occupations along with it.

[00:12:43] Speaker 02:
So we don't feel we were adverse in effect.

[00:12:45] Speaker 02:
We were doing what the department approved that we could do.

[00:12:50] Speaker 04:
Make sure my colleagues don't have further questions for you at this point.

[00:12:53] Speaker 04:
Mr. Lake, why don't we hear from the government?

[00:12:56] Speaker 04:
Thank you.

[00:12:57] Speaker 04:
Mr. Goldsmith.

[00:12:59] Speaker 05:
May it please the court, Aaron Goldsmith on behalf of the government.

[00:13:03] Speaker 05:
As the district court recognized, this is a classic Chevron case.

[00:13:07] Speaker 05:
In this case, Congress created the H2A program and delegated authority to the Department of Labor to make policy choices and to design the rules implementing and governing this program.

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significantly, Congress did not define the terms adversely affect or similarly employed, but rather left it to the agency to fill in those gaps and to accomplish the two goals of this program of protecting U.S.

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workers, but also allowing employers to bring an adequate supply of labor.

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And that's what happened here.

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In 2008,

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the agency made one policy decision to limit the scope of corresponding employment to newly hired workers.

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In 2010, the agency made a different policy decision deciding to remove that limitation and to further expand the scope of corresponding employment to include work that was performed outside of the job order.

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There was nothing irrational or improper

[00:14:14] Speaker 05:
in the agency making these policy decisions.

[00:14:17] Speaker 03:
And I would add- Now, counsel, would you say that the scope of the 2010 rule is broader than the scope of the 1987 rule?

[00:14:31] Speaker 05:
In one respect, in one substantive respect, and that is with respect to work performed outside the job order.

[00:14:39] Speaker 05:
with respect to this idea that the 1987 rule was limited to only qualified workers.

[00:14:48] Speaker 05:
That's simply not the case.

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And as the preamble to both 2008 and the 2010 rule

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set forth, they're carrying forward the old requirement that the adverse effect wage rate be paid to any domestic worker performing any of the same task, any of the same work.

[00:15:12] Speaker 05:
And I think the agency went a little bit beyond that in the preamble to the 2010 rule and explaining exactly that this is not a new requirement and tracing with citations to the Federal Register

[00:15:26] Speaker 05:
this requirement and previous rules and previous programs going all the way back to 1967.

[00:15:32] Speaker 05:
Now, that's not directly applicable here, but the point is this is not a new requirement.

[00:15:39] Speaker 05:
We set forth the agency handbook, the Hyatt Farms.

[00:15:46] Speaker 03:
But didn't the agency in 2010 imply that

[00:15:52] Speaker 03:
that it was essentially the same rule as 1987 when that's not really the case?

[00:15:57] Speaker 05:
Well, it did expressly state in the preamble that it was making this change for expanding it in terms of any work performed by the H2A worker in the agricultural capacity.

[00:16:13] Speaker 05:
That is

[00:16:14] Speaker 05:
even if the work was outside of the job order and then explain the reason for doing so.

[00:16:18] Speaker 05:
And the district court recognized that and set that forth in the district court opinion.

[00:16:24] Speaker 05:
Now, so there was a change.

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It was not identical to the 1987 rule, but it explained that change.

[00:16:33] Speaker 05:
And moreover, I think, you know,

[00:16:38] Speaker 05:
Agencies sometimes use different terminology, different words.

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And the fact that the two rules don't have the identical words is not dispositive.

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And the agency has sort of set this forward, has explained it, moving backwards.

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And I would also add, we're not writing on a blank slate.

[00:17:00] Speaker 05:
this court addressed a similar issue in the Dole decision where it said, look, Congress has not defined what adverse effect means.

[00:17:11] Speaker 05:
That case dealt with the methodology for the adverse effect wage rate.

[00:17:17] Speaker 05:
It was a policy decision.

[00:17:18] Speaker 05:
It was within the bounds of a rather broad congressional delegation.

[00:17:24] Speaker 05:
And this involves a similar issue, although not an identical issue of to whom that adverse effect wage rate must be paid, to whom is it owed.

[00:17:35] Speaker 05:
And the reasoning applies here.

[00:17:38] Speaker 05:
There was a change, but that change was explained.

[00:17:41] Speaker 05:
There's nothing improper about an agency changing its mind or determining, look, we need to take additional steps, additional measures to protect you.

[00:17:52] Speaker 03:
Thank you.

[00:17:53] Speaker 03:
I mean one of the other things though that was changed in 2010 was the language about occupations was removed, same occupation.

[00:18:11] Speaker 03:
But I don't recall seeing any reference to that change in the rule and

[00:18:20] Speaker 03:
that was raised in the opening brief, pages 43 and 44, I believe, of the opening brief, and I didn't see any response to that in your brief.

[00:18:33] Speaker 03:
Did I miss that in either the rule or in your brief, as far as any explanation for why the occupations language was taken out?

[00:18:46] Speaker 05:
So your honor is correct that the occupations language was taken out, but the agency never defined in that regulation what occupations means.

[00:18:56] Speaker 05:
Its position and its understanding that was set out in the preamble to the 2010 rule is that if it was any work, you had to pay the adverse effect wage rate to those US workers.

[00:19:09] Speaker 05:
So that, you know,

[00:19:13] Speaker 05:
It is true that it used the word occupations and that word does not appear in the 2010 rule.

[00:19:19] Speaker 05:
We can see that point.

[00:19:21] Speaker 05:
But the agency didn't, this isn't something where there was no explanation.

[00:19:27] Speaker 05:
It traced that requirement back through different rules, even though the program has changed considerably over the years and

[00:19:35] Speaker 05:
there have been all kinds of changes.

[00:19:37] Speaker 05:
The terminology has not been the same.

[00:19:40] Speaker 05:
This requirement has remained the same with the exception, limited exception for the period of time from 2008 to 2010, when there was this additional limitation to newly hired workers.

[00:19:55] Speaker 05:
That was, if you look at the 2008 preamble, that's what they're saying were changing.

[00:20:00] Speaker 05:
And then in 2010, they're explaining why they're removing that limitation, that it proved to be unworkable, that they look at it, and there were these anomalies produced by that rule.

[00:20:13] Speaker 05:
So that was kind of the reasoning, and that was what was set forward.

[00:20:17] Speaker 05:
And I think the judge kind of, the district court judge hit the nail on the head, and this is on page 412 of the joint appendix,

[00:20:25] Speaker 05:
in terms of looking at the different rules, whether it was the 1987, the 2008, 2010, that none of them restricted it in the manner in which the plaintiff suggests.

[00:20:38] Speaker 05:
And that under any of those, it's not limited to workers having the same qualification, rather it's any work with the exception of that one limited exception that I just discussed for the period of time from 2008 to 2010.

[00:20:54] Speaker 03:
And I understand something, I guess, just kind of factually in how this program works, or the H2A workers paid the adverse effect rate for everything that they do, whether it's the kind of what's specifically in their qualifications, or in this case, when they are doing the other agriculture or other any work.

[00:21:24] Speaker 03:
they're paid the same wage rate for all of it.

[00:21:27] Speaker 03:
Is that correct?

[00:21:29] Speaker 05:
I believe that's correct.

[00:21:30] Speaker 05:
With one caveat, the HGA program creates a wage floor.

[00:21:36] Speaker 05:
And there are some circumstances where that floor is above the rate of the adverse effect wage rate.

[00:21:42] Speaker 05:
But for the purposes of this case, the wage floor is the adverse effect wage rate.

[00:21:48] Speaker 01:
Wait a minute.

[00:21:48] Speaker 01:
Wait a minute, Council.

[00:21:49] Speaker 01:
I misunderstood that.

[00:21:52] Speaker 01:
I thought

[00:21:53] Speaker 01:
from reading the briefs.

[00:21:55] Speaker 01:
I thought the domestic workers would be paid at a higher rate, the adverse rate, for work it performed that was identical to the work performed by the skilled workers, the skilled workers in the non-skilled task.

[00:22:24] Speaker 01:
In other words, I didn't understand, maybe I have it wrong.

[00:22:28] Speaker 01:
I didn't understand that if the skilled workers performed, say 20%, spent 20% of their time on unskilled work, that the unskilled workers would get all of their pay at adverse levels.

[00:22:49] Speaker 01:
I thought they would only get pay for the kind of work

[00:22:54] Speaker 01:
was unskilled that the foreign workers did.

[00:22:59] Speaker 05:
I see my time has expired.

[00:23:03] Speaker 05:
May I just address that question?

[00:23:04] Speaker 05:
Yeah, yeah, of course.

[00:23:05] Speaker 05:
So it's, it's, they're paid the same wages for the same work as the shortage.

[00:23:11] Speaker 01:
That's what I thought, for the same work, for the same work, not for all their work.

[00:23:17] Speaker 01:
For the same work, not all the work.

[00:23:19] Speaker 05:
For the same work, and that's why the district court's ruling was correct and should be firm.

[00:23:26] Speaker 04:
Aren't we talking about two different things?

[00:23:28] Speaker 04:
Maybe I'm misunderstanding, but I thought what Judge Silverman was asking about is the wages for the similarly employed.

[00:23:36] Speaker 04:
And for them, they get the adverse effective wage for work that's the same as that performed by the H2A workers.

[00:23:43] Speaker 04:
But I thought, and they don't get the adverse effect wage for other work.

[00:23:47] Speaker 04:
They only get it for the work that's the same as the work that's performed by the H2A workers.

[00:23:52] Speaker 04:
But I thought Judge Wilkins' question was about the wages paid to the H2A workers.

[00:23:59] Speaker 04:
Maybe I misunderstood.

[00:24:00] Speaker 05:
I think, Your Honor, I apologize.

[00:24:02] Speaker 05:
I think I misunderstood Judge Wilkins' question.

[00:24:05] Speaker 05:
So I apologize to Your Honor for misinterpreting what you were saying.

[00:24:10] Speaker 05:
But yet as it may, that's how the program is structured as it's set forward.

[00:24:17] Speaker 05:
And I think the district court judge hit the nail on the head.

[00:24:20] Speaker 03:
Yeah.

[00:24:21] Speaker 03:
So Judge Srinivasan is correct.

[00:24:23] Speaker 03:
I was trying to get at the issue of, let's suppose

[00:24:27] Speaker 03:
the skilled H2A worker does 80% of the kind of work in the specific qualifications, but 20% of their work is unskilled work that domestic workers also do.

[00:24:50] Speaker 03:
My question is just simply, they get paid that adverse effect wage for

[00:24:57] Speaker 03:
the 20%, the same as the 80%, right?

[00:25:03] Speaker 05:
Well, the answer is whatever was in the job order, whatever the employer certified that they were going to pay, but it would be the adverse effect wage rate in this particular case.

[00:25:16] Speaker 03:
So one of the things I'm trying to understand, and help me if I'm a little thick here, is why it would be in the employer's interest

[00:25:27] Speaker 03:
to have them at least economic interests, to have them do work kind of outside of the skilled work for lack of a better way of putting it.

[00:25:41] Speaker 03:
If they're got to pay these foreign workers a higher wage than domestic workers to do the same work.

[00:25:52] Speaker 03:
Why is that

[00:25:55] Speaker 03:
kind of ever in their economic interest to do that.

[00:25:58] Speaker 05:
Well, employers have to make different decisions business decisions based on kind of the realities that they're faced with.

[00:26:07] Speaker 05:
And, you know,

[00:26:11] Speaker 05:
there are situations where, and I think this is something that District Court was alluding to, you might have a situation where, and you might, well, I'm not sure how else to put it, that you might have situations where they make decisions based on the work that's available, what needs to be done, and they make those decisions, and that simply,

[00:26:37] Speaker 03:
Let me put it this way.

[00:26:39] Speaker 03:
I think there's discussion in your brief of a hypothetical situation where really there's only enough skilled work for eight employees.

[00:26:54] Speaker 03:
But instead of only hiring eight of the foreign H2A employees, the company might hire 10.

[00:27:02] Speaker 03:
And basically,

[00:27:05] Speaker 03:
kind of use that extra capacity to have those H2A workers doing work that US workers could be doing.

[00:27:13] Speaker 03:
And we don't want that to happen.

[00:27:16] Speaker 03:
We want to protect jobs of US workers.

[00:27:21] Speaker 03:
That makes sense if they would be paying the foreign workers less than what they would have to pay US workers.

[00:27:30] Speaker 03:
But I don't really understand how that makes sense

[00:27:33] Speaker 03:
if they got to pay the foreign workers more than what they have to pay U.S.

[00:27:39] Speaker 01:
workers.

[00:27:39] Speaker 01:
May I try and answer that as a former labor official?

[00:27:47] Speaker 03:
Well, I guess so.

[00:27:49] Speaker 03:
I was wanting to see counsel's answer, but.

[00:27:51] Speaker 05:
All right, go ahead.

[00:27:54] Speaker 05:
I was hoping that you were going to throw me a line there.

[00:27:57] Speaker 05:
So let me just say the concern is,

[00:28:02] Speaker 05:
that there are these two provisions, subsection A and B. And A concerns this idea that you don't want to have a situation where someone has to certify that there is no qualified domestic worker for a position.

[00:28:18] Speaker 05:
And then

[00:28:21] Speaker 05:
The fact that an employer might say, well, I would prefer to hire a foreign worker for whatever reason is not acceptable under subsection A. And then as to why they might do this, I don't really want to speculate more than what we had said and what the district court identified that you might have this situation where businesses for whatever reason make the decisions that they make.

[00:28:51] Speaker 01:
Let me ask the question this way to follow up on Judge Wilkins.

[00:28:59] Speaker 01:
Here's what I understand would be the economic incentive on the part of the employer to get around the regulation.

[00:29:12] Speaker 01:
He wants to hire skilled workers, but he knows that

[00:29:20] Speaker 01:
say 10 or 20 percent of the time, they won't be occupied on skilled work.

[00:29:27] Speaker 01:
And they would like to be able to take incidental unskilled work.

[00:29:32] Speaker 01:
Otherwise, they would just be sitting around doing nothing.

[00:29:37] Speaker 01:
And that's not very economical.

[00:29:40] Speaker 01:
Now, when they do that non skilled work, of course, they're paid, even under the old system, higher wages.

[00:29:49] Speaker 01:
But it's still worth it to have them not sitting around because that's a dead loss.

[00:29:56] Speaker 01:
But when they do perform the unskilled work, they're taking it away from the unskilled workers.

[00:30:06] Speaker 01:
So they're adversely affecting their labor conditions.

[00:30:12] Speaker 01:
So that's what I understand the regulation as meaning.

[00:30:15] Speaker 01:
Am I not correct?

[00:30:17] Speaker 05:
That is one scenario.

[00:30:18] Speaker 05:
So for example, under the facts of this case, there were 55 foreign workers.

[00:30:22] Speaker 05:
Perhaps you could have had a situation where they had only brought over 52 foreign workers and there would have been additional work for US workers.

[00:30:31] Speaker 05:
So that's what we're getting at.

[00:30:33] Speaker 01:
Yes, of course.

[00:30:34] Speaker 01:
So Judge Wilkins asked a very good question.

[00:30:38] Speaker 01:
What is the economic incentive for the employer to have skilled workers doing unskilled work?

[00:30:47] Speaker 01:
And the answer is it's incidental and they don't want, the employer doesn't want them sitting around.

[00:30:54] Speaker 01:
So he would like them doing that work.

[00:30:55] Speaker 01:
Now he will pay a high rate for that, but it's better than those sitting around.

[00:31:01] Speaker 01:
And when they do do that work, they adversely affect the domestic workers because they take away some of their job, some of their work.

[00:31:11] Speaker 01:
And it's not just wages, it's conditions.

[00:31:17] Speaker 01:
Am I not correct?

[00:31:18] Speaker 01:
That's correct, Your Honor.

[00:31:21] Speaker 03:
Thank you.

[00:31:21] Speaker 03:
That helps me understand better.

[00:31:25] Speaker 04:
Unless my colleagues have further questions for you, Mr. Goldsmith, we'll give Mr. Lake his rebuttal time.

[00:31:33] Speaker 04:
Thank you.

[00:31:34] Speaker 04:
Mr. Lake, we'll give you two minutes for your rebuttal.

[00:31:36] Speaker 02:
Thank you.

[00:31:38] Speaker 02:
To answer several of the questions just posed, the H2A workers are paid the premium wage rate for all the work that they do.

[00:31:46] Speaker 02:
There is no incentive for an employer to bring in H2A workers as a cost-cutting measure.

[00:31:52] Speaker 02:
They pay free housing.

[00:31:54] Speaker 02:
They pay their inbound and outbound transportation costs in addition to the elevated wage.

[00:32:01] Speaker 02:
The back wages sought in this case are for the entire period that the non-H2A production workers who did not have the skills coincide in employment with the H2As.

[00:32:13] Speaker 02:
It is an absolute practical impossibility

[00:32:16] Speaker 02:
to go around the workforce and look at what every person is doing at one time and measure in minutes exactly when there is an overlap in duty.

[00:32:26] Speaker 02:
The reason the incidental duty language was put into the occupation of order puller was to avoid the problem.

[00:32:34] Speaker 02:
As I mentioned, the department was so concerned about and eliminated in 2008.

[00:32:38] Speaker 02:
That was the reason it was done.

[00:32:41] Speaker 02:
The client wanted to have full disclosure

[00:32:44] Speaker 02:
when there are times in a dynamic agricultural workforce where people are working together as teams to do things, whether it's pulling plants, putting them on trucks, filling out the orders, comparing them to what the customer wants.

[00:32:57] Speaker 02:
It would be an absolute impracticality as suggested in the brief before this court by the department to go around and having teams with stopwatches.

[00:33:08] Speaker 02:
measuring activities that each is doing.

[00:33:11] Speaker 02:
The preamble to the 2010 rule says the intent by going to any task in common as opposed to an occupation, the statutory language, was not to bring the entire workforce into the adverse effect wage, but that is exactly what has happened here.

[00:33:30] Speaker 02:
They have basically created an impractical situation, which is impossible to comply with in the nature of a workforce.

[00:33:37] Speaker 02:
And the department in the preamble of this rule acknowledged that when they looked at qualifications for jobs, their intent was not to micromanage and tell business operations how to run their businesses.

[00:33:49] Speaker 02:
And that's exactly what has happened here.

[00:33:51] Speaker 02:
And the department, as we stated in our brief,

[00:33:55] Speaker 02:
And as their expert in countrywide Jim Mooney on this program who did the audit conceded, it's pretty much impossible for in an egg workforce to basically not have people doing the same thing at the same time on some occasions.

[00:34:12] Speaker 02:
And he talked about it.

[00:34:13] Speaker 02:
It was characterized as an egg as a catch 22.

[00:34:16] Speaker 04:
Okay.

[00:34:18] Speaker 04:
Thank you, counsel.

[00:34:19] Speaker 04:
Thank you to both counsel for your arguments.

[00:34:21] Speaker 04:
We'll take this case under submission.