Feb 6, 2025

NCAE works to secure labor wins for America’s farm families 

Instead of being impressed with the Department of Labor’s arguments, the judge appeared distressed.

On Nov. 4, a Federal District Court judge for the Eastern District of Kentucky in Lexington heard the challenge brought by NCAE and several other groups to the Department of Labor’s (DOL) “Worker Protection” rule that became a final rule earlier this year. 

The rule had already been enjoined in 17 states by a District Court in Georgia. Our challenge was to convince the court that an injunction against this unlawful and unconstitutional regulation should be extended to the other 33 states and to the national membership of National Council of Agricultural Employers (NCAE) – not only that it be found illegal in those states subject to the Georgia injunction. Our argument is that if it was illegal in the 17 plaintiff states, it must surely be illegal in the rest. The U.S. Constitution’s protection of the rights of all Americans does not stop at state lines.

As plaintiffs in the action, our side went first. A North Carolina grower testified to the damage that is occurring to his operation because of the regulation. He testified that the new regulation had increased costs significantly and he is unsure how he will hold on into the coming year. He also testified that his South Carolina neighbors had been protected from this unlawful intrusion of the rule and provided them with an advantage in the market as a result.

The grower also mentioned an issue that really got the court’s attention. That was the rule’s requirement that all passengers must always wear seatbelts in employer transportation. Concerning the judge was that the rule would hold the employer “strictly liable” for the failure of any employee to not. Strict liability is a legal term referring to the holding of an individual or entity liable for damages or losses, without having to prove carelessness or mistake.

The judge was distressed.

Our next witness, one of NCAE’s executive committee members, laid out for the court the many challenges the enjoined rule made for his company as they filed for certifications. They file many applications for employers who have operations in states that are both within, without and adjacent to the lucky 17.

The filing costs had exploded for the employers as what had historically required the filing of just one petition in an area of intended employment for the same employer and the same workers, now required multiple filings. On cross-examination, the Department of Justice attorney representing the DOL made the claim that the changes in the new rule were only “incremental” adjustments.

The court was not convinced.

The next witness was a grower from Kentucky who explained to the court his challenge and the added costs imposed by the DOL’s remedy to the injunctive relief because he farms in Kentucky and Virginia. He told the judge that his workers in Virginia had one set of rules to abide by and the workers in Kentucky had another set, even though the workers were the same people. He expressed frustration that things changed on the regulatory front only because he crossed a state line.

The judge pondered whether this was the “incremental” change DOL advertised.

NCAE was called as the final witness. We walked through the questions asked by our attorney on direct examination. We let the judge know how concerned we were with the rule when it was in its proposed form. We told the court about meeting with DOL and indicating that the rule should have never seen the light of day.

We noted that we didn’t understand how the executive branch had control over the Congress’ determination in the National Labor Relations Act or why the DOL could look askance at the Supreme Court’s 2021 decision finding a regulation providing access to a farmer’s property was a violation of the 5th and 14th Amendments.

On cross-examination, the DOJ attorney challenged us with questions which, to the attorney’s chagrin, allowed NCAE to pounce. We placed into the record again all the rest of the frailties of the new rule and shared that if the DOL had wanted our opinion on the “fix” for the injunction, we would have gladly shared our thoughts because that “notice and comment” is required by law. It’s something DOL had not followed. We also raised concern as to how much deference should be given to the agency following the Supreme Court’s overruling of Chevron deference.

The DOJ attorney seemed stunned. And that was before the judge started asking questions of him. Borrowed from the witness’ testimony, these were questions he had no good answers for.

The judge appeared distressed as to how to proceed as DOL had not given him many options.

On Nov. 25, a federal district court in Mississippi ruled the DOL lacked the authority to issue certain parts of regulations of the H-2A visa program it issued in April.

The judge issued a stay of the regulations, precluding DOL from enforcing the regulations nationwide. The most problematic provisions were parts of that rule including requiring agricultural employers to allow temporary foreign farmworkers to unionize. 

— 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 for 15 years was CEO of the largest U.S. dairy producer trade association.