Nov 21, 2024

Ag Labor Review: More heavy lifting needed on overturning DOL rules

Earlier this year, a federal district court in Georgia found that the Department of Labor’s (DOL) “Worker Protection” rule was unlawful.

NCAE had raised these claims, and others, that the court found objectionable when it filed comments in opposition to the regulation during the rulemaking. The court enjoined the rule indicating that the plaintiffs were likely to demonstrate that the final rule conflicts with the National Labor Relations Act of 1935 (NLRA).

The NLRA grants workers the ability to form unions for the purpose of collective bargaining with employers. Of course, Congress in 1935 was concerned with the prospect of unionized farm workers striking at farms and ranches during critical harvest seasons in an effort to extort employers.

Then, the world was amid the Great Depression and hunger was rampant marked by bread lines and soup kitchens. Extortive union strikes on America’s food supply was a bridge too far for Congress. So, Congress rightfully specifically excluded agricultural workers from the ability to unionize under the NLRA.

The recent court ruling found the rule unconstitutional because it functionally amended the NLRA by regulation (something an executive branch agency cannot do) by granting the ability to form unions to H-2A workers, a subset of agricultural workers excluded by Congress under the NLRA. The court also concluded that the plaintiffs would suffer irreparable injury from the rule and the public interest weighed in favor of granting a stay.

The court did not enjoin the rule nationwide, but limited the reach of the injunction to the 17 plaintiff states and the grower plaintiffs. DOL changed the rule, so the unlawful regulation stays in place for the other 33 states causing confusion and increasing costs. A more prudent move by the acting secretary would have been to recognize the DOL’s fundamental error and move to withdraw the offensive regulation.

There remains work to do.

NCAE has filed an action in federal district court in Kentucky to extend relief from this unconstitutional rule to the other 33 states. A similar action was subsequently filed in Mississippi. A district court in North Carolina will also weigh in on the matter unique to that jurisdiction.

Hopefully, relief will come quickly.

When I travel around the country and meet with farm and ranch families, one of the biggest concerns I hear is over the extraordinary impact wage inflation is having on their cost of doing business. The primary culprit is the misuse of data by the DOL in establishing H-2A program wage rates. Whether the enterprise is using temporary or seasonal H-2A workers, the rates harm U.S. agriculture.

According to the USDA’s 2022 Census of Agriculture, more than 140,000 farms shuttered over the previous five years and more than 20 million acres of prime agricultural land was fallowed. Not subject to the mandated wage rates, foreign competition took advantage of the arbitrage opportunity created for them by our government.

NCAE has a case pending in federal district court in Florida, a motion for summary judgment on the wage rates after the judge relied on Chevron deference, tinyurl.com/59mnxdpw, in denying the motion for preliminary injunction against DOL. The Supreme Court in June determined in an opinion penned by the chief justice that “Chevron is overruled.”

Recently, a federal district court in Louisiana determined that the DOL’s wage rate, as applied to sugarcane workers driving trucks with sugarcane to the mill, was unlawful. Deference should not be granted to the DOL in determining wage rates for those workers. NCAE has notified the judge handling the Florida case of both the Supreme Court’s action in June and the Louisiana Court’s recent determination.

Sadly, as Americans we shouldn’t have to litigate common sense. A few things may be turning our way, but there remains work to do.

Written by Michael Marsh

Michael Marsh has led the National Council of Agricultural Employers since 2017. A Wyoming native and certified public accountant, Marsh worked for a CPA firm with farm and ranch clients investigating fraud. He was director of finance for the Almond Board of California for 7 years and was CEO of the largest U.S. dairy producer trade association for 15 years.