A coalition of 17 states is suing to keep the Department of Labor from granting foreign farm workers certain labor rights that it says even many American workers don’t enjoy.
The H-2A visa program allows employers to bring foreign workers into the United States to fill temporary agricultural jobs for up to 10 months. It is designed to help farmers find enough working hands when there is a lack of qualified and available American citizens or resident workers.
The Labor Department’s proposed rule would, among other things, allow those on an H-2A visa to have a designee present for any investigatory interview that they believe might result in disciplinary action. It also makes it easier for H-2A workers to engage with or seek advice from labor union organizers, specifically requiring employers who provide housing to allow workers to invite such guests to their living quarters.
The rule also recognizes the right of H-2A visa holders to organize a boycott or picket against their employers. In one exemplary scenario, the Labor Department stated that it protects organized activities such as handing out flyers, leafleting, or picketing outside a grocery store that sells agricultural products derived from their labor in order to discourage customers from buying those specific products.
“H-2A workers too frequently face abusive working conditions that undercut all farmworkers in the U.S.,” Acting Secretary of Labor Julie Su said in April when the rule was rolled out. “This rule ensures farmworkers employed through the H-2A program are treated fairly, have a voice in their workplace, and are able to perform their work safely.”
The 17-state coalition asked the court to block the rule before it goes into effect on June 28. The states claim that they have a stake in this rule’s implementation because their workforce agencies would have to spend more money and hire more people to ensure compliance.
In 1935, as part of then-President Franklin D. Roosevelt’s New Deal, Congress enacted the NLRA to establish the right of certain employees to unionize. The law covers most employees in the private sector but, to this day, leaves out government employees, agricultural workers, independent contractors, and supervisors, with limited exceptions.
“If the Final Rule were to go into effect, H-2A farmworkers would have greater organizing and collective bargaining rights than their American counterparts,” the complaint reads.
The lawsuit is joined by private plaintiffs, the Georgia Fruit and Vegetable Growers Association, and one of the association’s members, Miles Berry Farm.
The farm, which relies on foreign seasonal workers to operate, stated that it doesn’t want to hire H-2A workers with NLRA protection because that means it has to offer more than the minimum pay, working conditions, and housing condition requirements of the H-2A program.
In response to questions submitted by the public concerning the impact of the rule, the Labor Department has stated that implementing the changes would help make sure that hiring H-2A workers does not harm the wages and working conditions of American workers.
“Proposals to prohibit retaliation for self-advocacy and concerted activity ... fall within the Department’s authority to ensure that foreign labor certification of H-2A workers does not adversely affect similarly employed workers in the United States,” it stated.
The plaintiffs said they don’t find that explanation convincing.
“The Final Rule does not rationally explain how this will be accomplished when H-2A workers are given greater protections than their American counterparts, nor does it wrestle with the fact that American farmworkers are still ineligible for these protections under the NLRA,” they argued.
The states joining the suit are Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia.
Labor Department officials didn’t respond by press time to a request by The Epoch Times for comment.
