Provisions in a Labor Department rule addressing the treatment and pay of H-2A farmworkers have been enjoined by a federal judge who ruled Monday the department exceeded its authority or did not adequately explain why it was changing its regulations.
The April 29 rule prohibited retaliation against employees who engaged in union organizing activities, “framing these provisions as mere expansions of anti-retaliation policies,” U.S. District Judge Danny Reeves of the Eastern District of Kentucky said in his opinion.
However, Reeves said DOL was trying to “grant H-2A workers substantive rights without congressional authorization” and found that “worker voice and empowerment provisions” in the April rule do not comply with the National Labor Relations Act, from which farmworkers are excluded.
The judge’s order significantly expands the scope of court injunctions affecting implementation of the rule. In August, a federal judge in Georgia enjoined implementation of the anti-retaliation provision in 17 states; the latest ruling is effective in West Virginia, Alabama, Ohio and Kentucky, and also includes members of various associations, including the National Council of Agricultural Employers, which claims to represent about 90% of the users of the H-2A program.
The 17 states affected by the earlier ruling are Kansas, Georgia, South Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas and Virginia.
After Wood’s ruling, the Labor Department said it would operate the H-2A program under different enforcement regimes, depending on whether the employer was in a state covered by that injunction.
“This new regulatory scheme has created obvious and understandable confusion among participating employers, farmers advocacy groups, and [state workforce agencies] as different employees are subject to different rules depending on where they work,” Reeves said in his opinion.
“Additionally, different employers may be bound by different rules in the same state depending on whether they were party to the litigation in the Southern District of Georgia," Reeves said. "As a result, employers and SWAs are struggling to adhere to the final rule and are incurring significant and additional compliance costs, while also remaining unsure if they are fully in compliance.”
He cited those impacts in finding the plaintiffs would suffer irreparable harm, one of the requirements for an injunction.
Also in his ruling, Reeves found fault with the department’s explanation for its new requirement that H-2A workers wear seatbelts at all times and hold employers liable if they didn’t.
“DOL does not explain how holding employers liable for the failure of the employee to wear a seatbelt addresses the issue of avoiding degrading worker safety conditions,” the judge said.
He enjoined enforcement of a provision of the rule requiring employers to pay the higher of a piece rate or an hourly rate, saying DOL had failed to explain the change.
“Before the final rule, employers could choose whether to compensate their employees on a piece rate or hourly basis,” Reeves said. “But under the final rule, employers are required, at the end of every pay period, to recalculate and pay employees by whichever method the department claims would have resulted in higher pay to the workers during that period.”
Reeves said the requirement that workers be allowed to invite guests onto the property constituted an unconstitutional taking, citing a 2021 Supreme Court decision involving a California nursery (Cedar Point Nursery v. Hassid). He also found that information required of employers by the new rule, such as employee birthdates, amounted to overreach.
“The personal information here far exceeds what the DOL may need to address the limited instances of misfeasance it cites,” the judge said.
