A federal judge in Georgia on Aug. 26 blocked a new labor rule that would give foreign farm workers on temporary U.S. visas certain rights and protections.
A coalition of 17 states led by Kansas, Georgia, and South Carolina, alongside the Georgia Fruit and Vegetable Growers Association and a Georgia farm, argued that a recent Department of Labor (DOL) regulation violates the National Labor Relations Act (NLRA), a 1935 federal law that allows certain employees to unionize.
The NRLA allows workers to organize and collectively bargain and makes it an “unfair labor practice” for employers to “dominate or interfere” with such organizing and bargaining. However, agricultural laborers were explicitly excluded from the law’s definition of an “employee.”
U.S. District Judge Lisa Godbey Wood found in favor of the states and granted a preliminary injunction to block the regulation from going into effect.
“By implementing the final rule, the DOL has exceeded the general authority constitutionally afforded to agencies,” she wrote in her 38-page decision.
The judge found that the two farms involved in the lawsuit, Miles Berry Farm and the Georgia Fruit and Vegetable Growers Association, would suffer irreparable financial harm if the rule were enforced. The farms argued that their costs would increase as a result of the rule.
The states also argued that the rule would give rights to H-2A visa holders that even U.S. citizens don’t enjoy. The H-2A visa program, authorized under the nearly 40-year-old Immigration and Nationality Act, allows foreign nationals to temporarily enter the United States to work in the agricultural labor sector.
The states involved in the lawsuit are Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia.
Final Rule
In April, the Labor Department issued the minimum terms and conditions of employment that it deemed necessary to neutralize any negative effects of hiring temporary foreign workers. The department’s responsibility is to ensure that hiring H-2A workers will not adversely affect the wages and working conditions of similarly employed workers in the United States.The final rule created the right for foreign workers on H-2A visas to participate in “concerted activity” to ensure that their employers are not violating the minimum standards as set forth by the Labor Department.
Specifically, the rule prohibited retaliation against H-2A holders who decide to unionize and take part in related activities.
The Labor Department argued that there were “pervasive” violations of the visa program, pointing to data from investigations by its Wage and Hour Division showing violations 88 percent of the time at farms it did inspect. The department noted that it “cannot investigate every farm.”
The department argued that H-2A workers are vulnerable to exploitation because of the nature of temporary work and its geographic location. According to court documents, the Labor Department said that H-2A employers often “retaliate against H-2A workers for asserting or advocating for their rights. “
The judge found that Congress didn’t intend to give farm laborers the right to “participate in concerted activity to further their interests.”
“The DOL may assist Congress, but may not become Congress,” Wood wrote.
The states requested a nationwide injunction, but the judge denied this request, finding that they could receive “complete relief” without it.
