A U.S. District Judge has issued a 17-state injunction against a Labor Department regulation that would have allowed farmworkers on H-2A visas to unionize. This decision, however, is specifically limited to the states and plaintiffs involved in the suit, as the court did not find it appropriate to implement a nationwide injunction. The injunction does not apply in states Western Growers members typically operate.
Judge Lisa Wood ruled that the Department of Labor overstepped its authority by permitting H-2A guestworkers to engage in self-organization and to invite external parties, including legal service providers and labor organizations, into their employer-provided housing. She clarified that "Administrative agencies, including the DOL, cannot create law, and the DOL cannot create rights that Congress has not. The DOL cannot make both executive rules and congressional laws."
While the court's focus was on the DOL's attempt to grant rights to foreign agricultural workers that are specifically excluded under the National Labor Relations Act, it did not address other significant concerns raised by the new Farmworker Protection Rule. Notably, the DOL has introduced extensive changes to the H-2A job order and application processes, further complicating an already burdensome filing procedure.
The lawsuit was brought by the Southeastern Legal Foundation on behalf of the Georgia Fruit and Vegetable Association, Miles Berry Farm and a coalition of 17 states –Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas and Virginia. With the injunction limited to these states, questions remain about how the DOL will apply the new rule and the updated forms on the FLAG system used for H-2A applications. The technical difficulties of having different forms for plaintiff states and non-plaintiff states and potential for different enforcement across states could create complications for DOL and H-2A filers alike.
Western Growers is closely monitoring the Labor Department's response to this ruling and considering next steps.
For more information:
Western Growers
Email: [email protected]
https://www.wga.com/