Foreign Farmworker Safeguards in Doubt as DOL Tests Its Power

The US Labor Department is fighting to preserve the bulk of its new regulations aimed at protecting seasonal farmworkers from overseas, even as a legal fight plays out over the agency’s statutory authority to grant workplace organizing protections.

A federal judge in Georgia this week sided with 17 Republican-led states that argued the Biden administration’s bid to bolster unionization efforts violated the National Labor Relations Act, which excludes farmworkers. The judge granted a limited injunction blocking rule in only those states even though the DOL has clear authority to issue regulations on the H-2A visa program.

In response, the government has asked the judge to narrow the injunction order. And worker advocates say many provisions of the 600-page regulations finalized in April should go into effect even if the courts toss those labor organizing protections.

“The bulk of the rule has nothing to do with those things,” said Nathan Leys, a staff attorney at FarmSTAND.

Among those provisions: a mandate that passengers use seat belts in employer-provided vehicles, wage disclosure requirements, and a ban on holding or confiscating worker documents like passports.

NLRA Exclusion

The regulations targeting working conditions of farmworkers on H-2A visas, which took effect June 28, include restrictions on coercive “captive audience” meetings aiming to dissuade labor organizing, clarifies “just cause” protections for termination, and guarantees workers can invite outside groups onto employer-provided housing. For the DOL, the rule was an attempt in part to address the agency’s limited enforcement capabilities by empowering workers on temporary visas.

But the Republican challenge, filed in the Southern District of Georgia, argued that the agency was improperly using the Immigration and Nationality Act as “a backdoor” for the Labor Department to add organizing protections for workers explicitly left out of the NLRA.

District Court Judge Lisa G. Wood rejected arguments that the DOL exceeded its authority to issue regulations on the H-2A program, finding that the agency had a clear role under the INA to certify there aren’t enough American workers to fill jobs instead of foreign workers and that similarly-employed US workers aren’t adversely affected by issuing visas. However, the agency’s power is limited by the NLRA, Wood found.

The agency had unconstitutionally sought to create law by offering collective bargaining rights to agricultural workers excluded from the workplace organizing statute, she wrote. Although the agency argued that there was no such right created by the rule, Wood found much of the language of the regulations “mirrors that of the NLRA.”

The order didn’t find that DOL was barred from issuing any labor regulations on agricultural workers. But, Wood wrote that “rulemaking authority alone, absent Congressional intent otherwise, does not allow the DOL to create law or protect newly-created rights of agricultural workers.”

Nowhere did the court identify any aspects of the rule in conflict with the statute, however, said Adam Pulver, an attorney at Public Citizen Litigation Group. And the reasoning of the injunction “departs from the framework courts have long used to determine whether executive action is prohibited by the NLRA,” he said.

Scope of Relief

Employers suing over the rule said the preliminary injunction showed separation of powers protects farm producers from “executive overreach,” but the order wasn’t met with unqualified praise by attorneys who advise employers.

It “gave away too much” to DOL on the scope of the agency’s rulemaking authority, said Mark Stevens, a senior attorney at Clark Hill PLC.

“It invites them to continue to be creative and aggressive with new H-2A regulations as long as they’re not parroting the NLRA so obviously,” he said.

Although the plaintiffs won only a narrow injunction covering the 17 states joining the lawsuit as well as a Georgia berry farm and industry trade group, the scope of the order was frustrating to worker advocates. It’s clear, they argue, that other provisions of the regulations should survive regardless of litigation over workplace organizing protections.

The Republican states didn’t challenge the vast majority of the rule “and so the court probably should have addressed whether the entire rule needed to be enjoined or only the parts deemed unlawful,” said Pulver of Public Citizen.

In response to the government’s motion, the GOP states said the proper route was an appeal, not a motion for reconsideration. And the government “barely addressed” the severability issue in a passing footnote in briefs, they said.

Safeguards in the regulations like seatbelt requirements for employer-provided transportation are a “life and death issue” for many foreign workers in the US, said Leys of FarmSTAND. The group highlighted in an amicus brief a May incident in which a drunk driver in Florida hit a bus carrying more than 50 farmworkers, many of them on H-2A visas, killing eight.

Employer Uncertainty

Other parts of the regulations will actually offer clarity to employers navigating the H-2A program, such as provisions addressing withholding of worker documents, said Loan Huynh, an immigration attorney at Fredrikson & Byron P.A. who advises agricultural employers.

But the limited geographic scope of the injunction will likely lead to more confusion among agricultural employers. The industry will be watching for additional guidance from the Labor Department on how it will carry out the rule in light of the litigation and injunction, Huynh said.

“I would advise my employers that they need to follow the rule until we get guidance from the Department of Labor otherwise,” she said.

The case is Kansas v. DOL, S.D. Ga., No. 2:24-cv-00076.