A federal judge ruled that a U.S. Department of Labor rule expanding protections for farmworkers on temporary visas and preventing employers from retaliating against people who try to form or join a union is unconstitutional.
ATLANTA (CN) — A federal judge in Georgia on Monday blocked the U.S. Department of Labor from enforcing a new rule in 17 states that would have prevented agricultural employers from retaliating against migrant workers on temporary H-2A work visas if they join unions and actively work to combat wage theft, human trafficking and other abuses.
The judge sided with the states in a lawsuit against the Department of Labor, issued a preliminary injunction, and ruled that the regulation would unconstitutionally grant foreign farm workers rights that Congress never intended.
U.S. District Judge Lisa Godbey Wood concluded that the rule violates the National Labor Relations Act, a federal law that allows certain workers to organize unions. Farmworkers are specifically excluded from the law's definition of “employee” and are not entitled to collective bargaining rights, said the judge, who was appointed by George W. Bush.
“In implementing the final rule, the DOL exceeded the general authority vested in agencies under the Constitution,” Wood wrote in the 38-page decision.
The U.S. Department of Justice, which represents the Labor Department in the case, did not immediately respond to a request for comment Monday evening.
The ruling followed a lawsuit filed in June by the attorneys general of Kansas, Georgia, South Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas and Virginia. A Georgia farm, Miles Berry Farm, and the Georgia Fruit and Vegetable Growers Association also joined the lawsuit.
The rule, officially titled “Enhancing Protections for Workers in Temporary Agricultural Employment in the United States,” was issued by the U.S. Department of Labor in April but did not take effect until June. The rule was designed to help workers in the H-2A program who are vulnerable to exploitation due to the temporary nature of their work, the geographic isolation of workers, and their dependence on a single employer.
The H-2A nonimmigrant worker visa program allows agricultural employers to temporarily hire foreign workers for jobs for which the U.S. Secretary of Labor certifies that there are not enough workers for the position.
Because the agency cannot investigate every farm that employs H-2A workers, the rule is intended to counter abusive working conditions by improving workers' ability to advocate for their own interests.
“Because of the vulnerabilities identified above, H-2A employers not only exploit H-2A workers but also frequently retaliate against H-2A workers who stand up for their own rights,” Wood said in the ruling.
The rule would have prevented employers from retaliating against H-2A visa holders who attempt to form, join, or support a union, or who refuse to participate in such activities. The rule does not require employers to recognize unions.
Other protections provided by the law include clarifications regarding termination “for cause,” improved safety requirements during transportation, and clarification that employers may not take away employees’ passports.
But Wood ruled that the agency had failed to demonstrate that Congress intended to grant farmworkers the right to “participate in concerted activities to advance their interests.”
Quoting a statement from the U.S. Supreme Court's 2001 ruling in Alexander v. Sandoval, Wood wrote, “'Agencies may play the sorcerer's apprentice, but not the sorcerer himself.' The final rule is an attempt by the Department to play the sorcerer. The Department may assist Congress, but may not become Congress itself.”
Wood considered but ultimately rejected the states' request to prohibit nationwide enforcement of the rule.
Wood concluded that “full compensation” was possible for the plaintiff states even without a nationwide injunction, but he rejected the argument that granting union-like rights to H-2A workers in other states would result in an unfair displacement of workers from the states where the lawsuit is located.
“Statewide uniformity is not an appropriate consideration for issuing a statewide injunction,” Wood ruled.
The injunction also specifically applies to Miles Berry Farm and the Georgia Fruit and Vegetable Growers Association. Wood ruled that both plaintiffs would suffer “irreparable financial harm” under the injunction.
Miles Berry Farm has said it will need to increase payments to its 150 H-2A workers due to the new, disadvantageous wage rates. The industry association said the costs of administering the “complex” new arrangement would increase.
A spokesman for the trade association was initially unavailable to comment on the ruling.
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