A new lawsuit seeks to block a Labor Department rule that farm and business groups say unlawfully expands labor rights for H-2A visa holders. Courts have stayed the rule in several states, but it could go into effect in dozens of other states. Farm and business groups argue the Department of Labor is using immigration law to impose labor organizing procedures on agricultural employers. Given that legal work visas have been found to reduce illegal entry, regulatory action that lessens the use of H-2A visas could increase illegal immigration.
The DOL H-2A Rule
On June 28, 2024, the Department of Labor published a final rule on H-2A visas. In its summary, DOL states, “This final rule requires employers to provide assurances that they will not intimidate, threaten, or otherwise discriminate against certain workers or others for engaging in ‘activities related to self-organization,’ including ‘concerted activities for the purpose of mutual aid or protection relating to wages or working conditions.’” DOL contends the rule “does not require H-2A employers to recognize labor organizations or to engage in any collective bargaining activities.”
According to DOL, “The Department is broadening § 655.135(h), which prohibits unfair treatment by employers, by expanding and explicitly protecting certain activities all workers must be able to engage in without fear of intimidation, threats, and other forms of retaliation.”
The rule also includes “new protections to safeguard collective action and concerted activity for mutual aid and protection, and, in a change responsive to comments, to allow those workers to decline to attend or listen to employer speech regarding protected activities without fear of retaliation.”
A New Lawsuit Seeks A Stay And Declaration The H-2A Rule Is Unlawful
On October 8, 2024, plaintiffs filed a lawsuit against the Labor Department and the H-2A rule in the U.S. District Court of the Southern District of Mississippi. The plaintiffs include the International Fresh Produce Association, the American Farm Bureau Federation, the Mississippi Farm Bureau Federation, the U.S. Chamber of Commerce, AmericanHort and other organizations.
The plaintiffs argue that even though Congress did not extend federal labor standards under the National Labor Relations Act of 1935 to agricultural workers, DOL’s H-2A rule “extends NLRA-like protections to all agricultural workers whose employers happen to participate in the H-2A Temporary Agricultural Worker Program.” The plaintiffs write, “As support for this newfound power, DOL invokes not the NLRA (it could not, as agricultural workers are exempt), but instead the Immigration Reform and Control Act of 1986 a nearly four-decade-old amendment to the Immigration and Nationality Act. The Rule nevertheless reads as though it is promulgated under the NLRA, rather than the INA [Immigration and Nationality Act].”
Plaintiffs argue that the final rule should be set aside because it is unlawful. First, “the statute permits DOL to obtain certain, limited ‘assurances’ from the employer, but it does not come close to authorizing the agency to issue affirmative labor protection requirements for all agriculture employees,” according to the complaint.
Second, the plaintiffs write, “The INA cannot be interpreted in a vacuum and must be harmonized with the broader statutory scheme for federal labor law. The NLRA and the NLRB’s [National Labor Relations Board’s] implementing regulations are the more specific provisions in this context, and they forbid federal superintendence of labor relations in the agricultural sector.”
Third, plaintiffs say the H-2A rule violates the First Amendment, citing a court case (NLRB v. Gissel Packing Co.): “’[A]n employer’s free speech right to communicate his views to his employees is firmly established and cannot be infringed’ by a government agency in an immigration regulation.”
H-2A Vital For Agriculture And Reducing Illegal Entry
H-2A visas provide for legally admitted workers in the U.S. agricultural industry and play a role in reducing illegal entry. As Mexican farm workers increased their use of H-2A visas, unlawful entry by Mexicans declined. Between FY 2006 and FY 2023, H-2A visas, used primarily by workers from Mexico, rose from 37,149 in FY 2006 to 310,676 in FY 2023, according to the State Department, coinciding with a significant drop in apprehensions of Mexicans at the Southwest border.
The complaint notes that courts have stayed the rule in Kansas, Georgia, South Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, and Virginia. The plaintiffs argue that the action is urgent because “DOL has indicated that employers in all other states ‘must comply’ with the Rule.”
“The Labor Department’s onerous H-2A rule will make it difficult for American farmers and ranchers to meet their critical workforce needs,” said Jon Baselice, vice president of immigration policy at the U.S. Chamber of Commerce, in a statement. “It does so by violating the free speech rights of American employers and the legal framework set by Congress decades ago. The rule is already enjoined in 17 states, but the Department has chosen to press ahead in the rest of the country.”
“The DOL rule represents a regulatory overreach that ignores both legislative and judicial precedent,” said Ken Fisher, president & CEO of AmericanHort, in a statement. “It imposes serious limitations on farm employers’ abilities to run their businesses while erecting barriers for those same employers to communicate with their employees.”
The Department of Labor disagrees with employers. “This final rule . . . responds to recent court decisions and program experience indicating a need to enhance the Department’s ability to enforce regulations related to foreign labor recruitment, to improve accountability for successors in interest and employers who use various methods to attempt to evade the law and regulatory requirements, and to enhance worker protections,” according to DOL’s explanation of the “Need for Rulemaking.”
Plaintiffs say failing to block the rule will inflict “irreparable harms” on Mississippi and the association members of the plaintiffs. According to the complaint, “It is no overstatement to say that the Rule fundamentally reorders an entire labor market, which will have spillover effects across the Nation’s food supply. Very soon, the compounding, cumulative harms of the Rule will be impossible to unwind, and the pervasive impact that the Rule already is having on labor relations on farms throughout the Nation will be irreversible.”