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In April, the Department of Labor (DOL) announced sweeping regulations aimed at increasing protections for the growing number of temporary agricultural workers entering the United States on H-2A nonimmigrant visas. A key element of this regulation establishes new protections for H-2A workers to participate in collective actions to advocate for themselves and others regarding working conditions.
Since this publication was published, 22 states, several farm owners, and industry associations have filed four lawsuits against the DOL to block enforcement of these protections.
The regulations specifically require employers to certify that they will not intimidate, intimidate, or otherwise discriminate or retaliate against agricultural workers because:
Participate in, or refuse to participate in, activities related to self-organization, such as forming, joining, or supporting a labor organization. Participation in, or refusal to participate in, other joint activities aimed at mutual aid or protection regarding wages or working conditions. Refusal to attend an employer-sponsored meeting with the employer whose primary purpose is to communicate the employer’s opinion regarding this protected activity.
In justifying the regulation, the DOL emphasized that H-2A workers are particularly vulnerable to exploitation. In fiscal year 2022, the company’s Wage and Hour Division (WHD) conducted 420 investigations into employers using the H-2A program, resulting in the assessment of nearly $10 million in unpaid wages and civil penalties. It was done. However, the Economic Policy Institute recently found that WHD surveys have plummeted by more than 60 percent since 2000, reaching a record low in 2022.
U.S. agricultural employers’ use of the H-2A program has exploded in recent years, making compliance monitoring difficult for the DOL. Between 2017 and 2022, the number of H-2A jobs approved or certified by the DOL increased from 224,965 to 370,628. This is a seven-fold increase compared to the early 2000s, when certified jobs were in the 40,000 to 50,000 range. Despite this growth, the total number of agricultural jobs has remained stable since the 1990s, with U.S.-based agricultural workers now making up a smaller portion of the workforce.
One of the important roles the DOL plays in the H-2A program is to ensure that the employment of nonimmigrant agricultural workers does not negatively impact U.S.-based agricultural workers. The DOL says the new regulations are needed in part because of the growing presence of H-2A workers, who are dependent on the temporary nature of their employment, geographic isolation, and commitment to a single employer. He said they are particularly vulnerable due to dependence. DOL states that without collective action protections for H-2A workers to enforce visa conditions without fear of retaliation, the rights of U.S.-based workers in the same workplace could be adversely affected. he pointed out.
However, these provisions have given rise to several lawsuits. Kansas and 16 other states filed the first lawsuit in June, joining with the Georgia-based Farm and Trade Association. In Kansas v. U.S. Department of Labor, the states argued that the DOL did not have the authority under immigration law to impose these new requirements on employers. Similarly, the plaintiffs also argued that the DOL cannot create new rights for agricultural workers, even if they are part of the H-2A program. Agricultural workers have been explicitly excluded from these protections since the National Labor Relations Act (NLRA), the primary federal law governing collective action in the workplace, was enacted in the 1930s.
The district court found that the DOL has regulatory authority to impose new class action protections through a “balancing” role.[ing] Although it had a “competing goal” of providing an adequate labor supply while protecting the employment of domestic workers, it ultimately determined that the rule was inconsistent with the NLRA and therefore unconstitutional. did. The judge issued a preliminary injunction, but declined to extend the ruling nationwide. Instead, the plaintiffs in the lawsuit were limited to 17 states and two private organizations.
Initially, the DOL announced that it would suspend enforcement of the rule, but on September 10, it applied the new rule to states not subject to the injunction and extended enforcement to states targeted by the Kansas lawsuit. The decision was made to introduce a bifurcated system that would temporarily suspend the This prompted several industry groups, including the National Council of Agricultural Employers (NCAE) and the U.S. Chamber of Commerce, to file their own lawsuits. Alabama, Kentucky, Ohio, and West Virginia are intervening as plaintiffs in the NCAE lawsuit, while Mississippi is the named plaintiff of the U.S. Chamber of Commerce. There are a total of four lawsuits pending against the DOL’s new rules, including one led by the North Carolina Department of Agriculture.
Each case calls into question the DOL’s authority to impose new class action protections. Given the current polarized H-2A application process, some plaintiffs are asking district courts to seek state orders suspending DOL regulations, citing “realistic challenges” to multistate companies. I’m asking you to release it. A workplace in one of the 17 states covered by Kansas’ injunction and a workplace in one of 33 other states.
NCAE’s request for a preliminary injunction is scheduled for a hearing in November, so we may soon find out whether the DOL’s split H-2A filing system will continue or whether the rule will be discontinued nationwide. I don’t know. Despite these legal battles, the H-2A program remains important due to chronic labor shortages in agriculture. Participation continues to grow, even though the program is often considered onerous and expensive by farmers, and there have been high-profile cases of labor abuses in the program.
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