Worker Protection Rule Injunction Press Release

UPDATE SEPTEMBER 3, 2024

Judge Wood denied the U.S. Department of Labor’s (“DOL”) eleventh hour request for the Court to issue a more-narrowly tailored order enjoining the enforcement of DOL’s Worker Protectional Final rule with respect to only the worker voice and empowerment provisions as opposed to the rule in its entirety in the 17 states named above. In rejecting the DOL’s request, Judge Wood called the DOL’s arguments “far too little too late” and specifically highlighted the fact that the DOL’s argument in support of severability “was far from fleshed out or properly supported and was raised only in a footnote” in its briefing. A copy of the Court’s Order Denying the DOL’s Motion for Reconsideration is available for review here. Importantly, we are expecting similar legal challenges to be filed in one or more of the remaining 33 states that were not parties to the Georgia litigation and understand a nationwide ban will likely be sought as a request for relief in support of the plaintiff(s)’ complaint(s). We will be closely monitoring these issues and will be sure to keep you apprised of any further developments in this regard.

UPDATE AUGUST 28, 2024

Confirmed by DOL on the night of 08/28/2024 that the Farmworker Protection Rule will be temporarily stayed nationwide as a result of Judge Wood’s ruling

August 28, 2024. The Department of Labor’s Office of Foreign Labor Certification Announces Delay in Transition Schedule for Implementing the H-2A Application and Job Order Associated with the 2024 Farmworker Protection Final Rule

https://www.dol.gov/agencies/eta/foreign-labor

The U.S Department of Labor (Department) has published the final rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States” (the “Farmworker Protection Rule”). The Farmworker Protection Rule is effective June 28, 2024. The Department previously announced that it would process clearance orders and associated H-2A applications filed before 7:00 PM Eastern Daylight Time on August 28, 2024, in accordance with 20 CFR part 655, subpart B in effect as of June 27, 2024. The Department explained that its case processing system, the Foreign Labor Application Gateway (“FLAG”), would then be updated to accept applications filed under the Farmworker Protection Rule. In addition, the Department explained that, to better align the implementation of the Farmworker Protection Rule’s revisions to 29 CFR 501.4(a) with parallel revisions in 20 CFR 655.135(h), the Department would begin to enforce the requirements of 29 CFR 501.4(a) as revised by the Farmworker Protection Rule only with respect to conduct or actions occurring on or after August 29, 2024. The Department also previously explained that applications submitted on or after 12:00 AM Eastern Daylight Time on August 29, 2024, would be processed in accordance with the provisions of the Farmworker Protection Rule tied directly to a temporary labor certification.

However, on August 26, 2024, the United States District Court for the Southern District of Georgia issued a preliminary injunction in the case Kansas, et al. vs. U.S. Department of Labor, No. 2:24-cv-00076-LGW-BWC (S.D. Ga., Aug. 26, 2024) (“Kansas”) prohibiting DOL from enforcing the Farmworker Protection Rule in certain states and with respect to certain entities. The preliminary injunction specifically prohibits DOL from enforcing the Farmworker Protection Rule in the states of Georgia, Kansas, South Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, and Virginia, and against Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024. Accordingly, consistent with the Kansas Order, the Department will not be enforcing the Final Rule in these states or with respect to these entities while the Order remains in effect.

The Department is carefully reviewing the Kansas Order and assessing various options to comply with the Order. For now, the Office of Foreign Labor Certification (OFLC) will delay updating its FLAG system to implement revised H-2A job order and application forms associated with the Farmworker Protection Rule, originally scheduled to begin at 7:00 PM Eastern Daylight Time on August 28, 2024, until further notice.

20 CFR part 655, subpart B

ORIGINAL PRESS RELEASE

The Honorable Judge Lisa Godbey Wood, writing for the U.S. District Court for the Southern District of Georgia, issued an order enjoining the enforcement of the Department of Labor’s (DOL’s) new Farmworker Protection Rule in 17 states on August 26, 2024. 

The immediate effect of the injunction for H-2A employers in Georgia, Kansas, South Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, and Virginia, is that the Farmworker Protection Rule will not go into effect as planned by DOL on August 29, 2024.

In reaching her decision, Judge Wood initially noted that DOL is afforded “considerable latitude to promulgate regulations that protect American workers from being adversely affected by the issuance of H-2A visas.” However, Judge Wood went on to find that DOL had crossed the line on one narrow issue: the administrative creation of a right, in this case collective bargaining for agricultural workers, that Congress had expressly prohibited. In simple terms, because Congress deliberately excluded agricultural workers from the National Labor Relations Act of 1935, DOL was not allowed to create that right through the Farmworker Protection Rule. 

As noted by Judge Wood, “The Court indeed finds that the Final Rule conflicts with the NLRA, and the Final rule is unconstitutional. The Court finds that, by implementing the Final Rule, the DOL has exceeded the general authority constitutionally afforded to agencies…DOL may assist Congress, but may not become Congress.”

At this time, Judge Wood’s ruling is only applicable in the 17 states listed above, and it remains to be seen how DOL will comply with the Court’s order in light of the anticipated updates to the FLAG forms scheduled for 7 EST today, 08/28/2024. The FLAG updates were scheduled for the express purposes of updating the filing forms to incorporate the new requirements of the Farmworker Protection Rule. Given the centralized nature of the nationwide FLAG system, it is highly unlikely that DOL will be able to practically administer two separate filing systems. As a result, we fully expect the implementation of the Farmworker Protection Rule to be delayed nationwide as a result of Judge Wood’s ruling, but DOL has not yet confirmed as of this writing. 

As of 2 PM EST on 08/28/2024, DOL is encouraging all H-2A stakeholders to continue  monitoring the Office of Foreign Labor Certification’s website for updates regarding the planned Farmworker Protection Rule implementation. We fully expect DOL to delay the implementation of the Farmworker Protection Rule prior to 7 PM EST today and will provide updates accordingly.