Farm labor group sues Department of Labor over H-2A rule

The labor group known as the National Council of Agricultural Employers said it has joined others in filing a lawsuit in the U.S. District Court for the Eastern District of Kentucky to challenge the U.S. Department of Labor’s final rule titled, Improving Protections for Workers in Temporary Agricultural Employment in the United States. The rule is intended to target vulnerability and abuses experienced by workers under the H-2A program that undermine fair labor standards for all farmworkers in the U.S.

The NCAE, which said other associations and individual farmers have signed onto the suit, argues that the rule is unlawful and unconstitutional and poses significant challenges to farm and ranch families nationwide. However, the organization did not specify which groups or individuals are included in the lawsuit, and no public statements could be found about others who may potentially be involved.

The NCAE is based just outside of Washington, D.C., and describes itself as a national trade association focusing exclusively on agricultural labor issues from the agricultural employer’s viewpoint. 

The rule, which was originally introduced in October 2022, is part of the Labor Department’s effort to modernize the H-2A temporary agricultural worker program. The department claims that the rule would enhance protections for farm workers, particularly those in the H-2A program, by promoting worker self-advocacy, preventing retaliation, and increasing transparency in foreign labor recruitment.

Acting Labor Secretary Julie Su stated that the rule would protect vulnerable farm workers from abuses that could depress wages and lower labor standards across the agricultural industry. She emphasized the administration’s commitment to ensuring fair treatment for all workers, particularly those who are at risk of exploitation.

However, the NCAE and its allies argue that the rule infringes on the constitutional rights of farm and ranch families. They contend it strips employers of due process, imposes impractical and harmful duties on farmers, and allows temporary foreign agricultural workers to unionize — a right not granted to American farmworkers. The NCAE believes these changes jeopardize farm safety and productivity.

On August 29, the U.S. District Court for the Southern District of Georgia issued a preliminary injunction in Kansas, et al. vs. U.S. Department of Labor, halting the rule from taking effect in certain states, including Georgia, Kansas, Texas, and others. However, two-thirds of states remain subject to the rule’s provisions, which the NCAE says leaves many farmers and ranchers vulnerable.

The court’s ruling stated, “Agencies may play the sorcerer’s apprentice but not the sorcerer himself,” implying that the Department of Labor overstepped its authority with this rule. Despite the injunction, on September 10, the department announced it would begin processing applications under the Final Rule for employers not covered by the injunction as of September 12. For employers covered by the injunction, applications would be processed under previous regulations, creating a dual application process.

Michael Marsh, NCAE’s President and CEO, criticized the Labor Department’s actions, stating that instead of withdrawing the rule, it has made matters even more complicated for farm and ranch families. He expressed hope that the U.S. District Court for the Eastern District of Kentucky will ultimately strike down the rule.