Legal Battle Simmers Over Plan to Give Farmworkers Union Rights

Employer groups are signaling potential upcoming lawsuits over US Labor Department regulations that seek to expand organizing protections for farmworkers on temporary visas.

The proposal, released in September, would boost the rights of H-2A farmworkers to form unions and organize in the workplace despite their exemption from the National Labor Relations Act’s coverage. New protections include a clarification of termination “for cause,” a ban on “captive audience” meetings, and the ability for labor organizations to access worker housing.

The proposal, part of broader Biden administration efforts to promote workers’ ability to form unions, has been welcomed by labor advocates. But industry groups like the US Chamber of Commerce are pushing back on the legal rationale for the expanded organizing protections, and questioning how mandates that outside groups be allowed to access employer-provided housing are permissible under US Supreme Court precedent.

Those critiques, laid out in recent public comments on Regulations.gov, highlight the likely focal point of legal battles over a final rule, which the DOL plans to issue in the spring.

The administration already is defending other new H-2A regulations in court, including a rule significantly increasing mandated wages for H-2A employees and one imposing new requirements on working conditions. But challenges to the new organizing protections are likely to offer the strongest test of the government’s rulemaking authority over the visa program and the limits of President Joe Biden’s larger pro-union agenda.

“The Biden administration has tried to use whatever mechanisms and tools are available to empower workers,” said Bob Bussel, director of the Labor Education and Research Center at the University of Oregon. “That’s certainly invited counter reactions.”

NLRA vs. INA

Central to the DOL proposal—and industry groups’ objections—is an interpretation of the Immigration and Nationality Act that would allow the agency to extend organizing protections to a class of workers explicitly exempt from the NLRA. That law guarantees the right of employees to organize unions and bargain collectively over working conditions, but excludes farmworkers as well as domestic workers and public sector employees.

The DOL, however, argues that it’s obligated under the INA to ensure that employment of foreign workers doesn’t adversely affect the wages and working conditions of Americans. That makes protections for H-2A workers to organize for better working conditions critical, the agency says.

Employer groups like the US Chamber of Commerce say that logic ignores Congress’ intent in omitting farm laborers from the NLRA in the first place.

“It’s a real stretch. It’s just pulling from very thin statutory language to spin out an entirely new regime of labor regulations,” said Alex MacDonald, a shareholder at Littler Mendelson PC who helped draft public comments from the Chamber—one of the nearly 350 submissions from industry groups, labor advocates, and other outside groups.

But while the INA doesn’t mention organizing protections, it also doesn’t explicitly address workers’ compensation insurance, employer-provided meals, or payments for transportation of H-2A workers into the US and back to their home countries, said Andrew Lyubarsky, associate general counsel at the AFL-CIO, which endorsed the proposed rule.

“All of those requirements imposed by the Department of Labor are relying on this broad statutory language that doesn’t necessarily stipulate the specifics that could be mandated,” he said in an interview. “If DOL has the authority to require minimum employment standards, we would argue it has the authority to ensure H-2A workers at least have a fair shot to enforce those standards.”

‘Taking’ of Property?

Industry groups have also zeroed in on a provision of the proposed rule that would guarantee workers’ rights to invite guests—including service organizations and labor groups—to employer-provided housing.

H-2A workers are more isolated than the general farmworker population and don’t have their own transportation to be able to access resources like legal aid or health centers in local communities, said Alexis Guild, vice president of strategy and programs at Farmworker Justice. The group was part of a coalition of worker organizations that submitted comments in support of the rule.

“Being able to go to that housing to talk to workers and provide information directly is crucial so that they are aware of those services and aware of their rights,” Guild said.

But industry groups such as the International Fresh Produce Association warned about work disruptions that labor organizers could cause during busy farm seasons. The National Council of Farmer Cooperatives also said the requirement “endangers the food supply chain” by allowing anyone onto their property.

Employers also argued that imposing such conditions violates employers’ property rights and flies in the face of the Supreme Court’s 2021 ruling in Cedar Point Nursery v. Hassid, which held that a California regulation requiring labor organizers’ access to agricultural employers’ property was a “per se physical taking” under the Fifth Amendment.

Lyubarsky said the California law at issue in the case applied to all agricultural employers in the state, whereas the DOL proposal is limited to those already receiving a significant government benefit by being able to hire foreign workers through the H-2A program. And Congress has broad authority over immigration that it has delegated to DOL, he said.

“There’s an easy way for employers to escape what they might view as an infringement on their property rights which is not hiring these workers,” he said.

But forcing companies to waive their constitutional rights as a condition of receiving a public benefit “sets a dangerous precedent,” MacDonald said.

And industry groups have frequently challenged DOL and other regulations on the basis that they overreach the agencies’ statutory authority, Bussel said.

“I suspect employers are thinking the courts are going to be favorable to that argument,” and the Supreme Court “has moved in that direction,” he said.