Georgia sues Biden administration over plans to expand farmworkers' rights

The state of Georgia has joined with a coalition of Republican-led states and a group of Georgia farmers to block a new federal regulation that would provide expanded protections for migrant workers on temporary visas.

The new rule, set to take effect this summer, reiterates that farmers are prohibited from retaining or confiscating their workers' passports, and vehicles used to transport workers must be equipped with seat belts. In addition, workers are permitted to invite guests into employer-provided housing. Under the H-2A program for migrant agricultural workers, employers are required to provide free housing to their seasonal workers, most of whom are from Latin America.

The legal challenge to the new federal rule concerns a series of additional provisions aimed at giving H-2A farmworkers more opportunities to unionize for better working conditions.

Those behind the lawsuit say the new organizational rights amount to state overreach and carry the risk that growers will have to give up their business.

“This rule imposes costs on food producers at a time when Americans are already suffering from high food prices. Before these costs are implemented, the American people should be given the opportunity to debate them and hold their elected politicians accountable for their decisions. That is not possible with the unelected bureaucrats responsible for this rule,” said attorney Braden Boucek of the Southeastern Legal Foundation, who is representing the plaintiffs.

The lawsuit against the Biden administration's Department of Labor, the federal agency responsible for overseeing the H-2A program, was filed in Brunswick. The only two nongovernmental entities involved in the suit are the Georgia Fruit and Vegetable Growers Association, a trade group, and Miles Berry Farm, a 400-acre blueberry producer in Appling County. According to the lawsuit, Miles Berry Farm employs about 150 H-2A workers each year.

Chris Butts, vice president of the Georgia Fruit and Vegetable Growers Association, warned in a statement that the Labor Department's new rule would have “devastating consequences for the agricultural industry.”

The federal government's new rule follows a period of rapid growth in the H-2A visa program, which is designed to help farmers meet their labor needs when they can't find local workers. In Georgia, one of the largest consumer states for migrant workers, there were 5,852 certified H-2A positions in 2012, up from more than 37,500 the previous year, according to data from the federal Office of Foreign Worker Certification.

Farmworkers are not covered by the National Labor Relations Act, the landmark 1935 law that gives private-sector workers the right to form unions and otherwise seek better working conditions. Some legal experts say a federal agency such as the Labor Department could extend similar rights through regulation.

But Boucek says that is a task for Congress.

“Congress makes laws, not the feds… That's why this case is important,” he wrote in a statement to the Atlanta Journal-Constitution.

In a press release on its website, Boucek's organization wrote that the Biden administration is requiring agricultural employers to “allow temporary foreign farmworkers to form unions, creating out of thin air a new right that American farmworkers do not even have.”

However, the new rule from the U.S. Department of Labor does not provide full collective bargaining rights or force workers to join a union. Rather, it gives workers the right to organize in a union to defend their labor rights without fear of reprisal from employers.

Labor advocates, who will have greater access to H-2A workers under the new rule, say expanded protections are needed in light of numerous reports of worker mistreatment, including in Georgia.

In 2021, southern Georgia made national headlines when a federal investigation called Operation Blooming Onion uncovered a criminal ring that allegedly subjected H-2A workers to “modern-day slavery,” with migrants forced to dig for onions with their bare hands under threat of gunpoint. Last year, the AJC reported on allegations that contractors hired by farmers to find H-2A workers were charging illegal placement fees, putting workers in debt and leaving them vulnerable to abuse.

“This rule brings long-overdue protections to workers – whose urgent need for more protection and government oversight was highlighted by the disastrous failures in Georgia during Operation Blooming Onion – which was not an isolated incident,” Antonio De Loera-Brust, communications director for the United Farm Workers, said in a statement. “It is a shocking low point when even the agricultural industry is trying to roll back these basic protections.”