Nov 28, 2022

Ag labor group sues to halt H-2A changes

The National Council of Agricultural Employers (NCAE) has filed a legal challenge to changes in the H-2A program.

The lawsuit alleges that the Department of Labor has “unlawfully repealed a final rule duly issued, prescribed or promulgated to achieve DOL’s statutory mandate set forth in the Immigration and Nationality Act.” The changes become effective Nov. 30.

The action was filed Nov. 23 in the District of Columbia District Court. The lawsuit cites six causes of action and seeks a preliminary injunction, a permanent injunction, a stay of its implementation as well as costs, among other relief.

“The nature of the changes will have a dramatic and negative effect on U.S. farm and ranch families whether they use the H-2A program or not,” Michael Marsh, NCAE president and CEO, said in a news release. “The Trump administration issued a rule that was a final agency action.  However, on Inauguration Day, which is a federal holiday, the new Biden administration unlawfully withdrew the Trump rule from publication at the Federal Register without any of the required public notice and comment.

“The new administration then substantially changed the rule Trump’s DOL had created to the detriment of farm and ranch families and again, failed to provide opportunity for required notice and comment,” Marsh said in the release. “The actions here were clearly arbitrary and capricious and an abuse of discretion by the secretary (of labor) and otherwise not in accordance with law.”

Analysis on the new regulation by the Cato Institute indicates that not only does this rule slam farm and ranch families with enormous new burdens and negatively impact their viability, but it also “… will add to the already sky-rocketing food prices in the United States,” according to the release, which calls it a lose-lose-lose scenario.

“The farm and ranch families we represent lose, the essential farmworkers our members work with every day lose, and it hits consumers in the pocketbook,” Marsh said in the release. “We must seek relief from this arbitrary and capricious regulation.  The secretary must follow the law and it is in the public interest that the U.S. government does just that.”

NCAE is the national trade association focusing on agricultural labor issues from the employer’s viewpoint.

According to the Cato Institute, some of the cost-raising measures in the rule include:

• Prohibiting a reduction in wages (even with contractual agreement of the worker) on the rare occasions when the mandated wage goes down;
• Codifying that farm associations which file H‑2A applications on behalf of individual members would be liable for the actions of those members (currently a matter of legal dispute);
• Effectively prohibiting many farms from using motels or other public accommodations to house workers to comply with H‑2A’s housing requirement by requiring that they meet totally inapplicable guidelines for temporary farm labor camp standards; and
• Massively increase surety bonds for H‑2A labor contractors, which are the employers driving most of the growth in H‑2A visas, targeting the fastest-growing group of H‑2A employers.