H-2A temporary agricultural workers picking crops | International Fresh Produce Association
AmericanHort and nine co-plaintiffs have filed a lawsuit contesting the U.S. Department of Labor (DOL)’s “unconstitutional regulatory overreach and limitations on the freedom of speech of farmers” who employ temporary workers. The other plaintiffs to the action include:
The lawsuit argues that DOL’s recently finalized H-2A rule, already enjoined in 17 states, illegally gives temporary agriculture workers collective bargaining rights, restricts the First Amendment rights of farmers who employ H-2A workers, and creates additional onerous burdens for employers and state governments. Taken separately and together, these effects are causing and will continue to cause irreparable harm to the carefully balanced and essential American agriculture industry.
“The DOL rule represents a regulatory overreach that ignores both legislative and judicial precedent. It imposes serious limitations on farm employers’ abilities to run their businesses while erecting barriers for those same employers to communicate with their employees,” says Ken Fisher, President and CEO of AmericanHort. “Our members depend on a reliable, legal workforce, and they deserve access to the H-2A program without facing excessive costs and red tape. By joining this lawsuit, we are standing up for a fair, balanced program that ensures our industry’s survival and success. We have advocated for a fair and equitable seasonal workforce program in this country for years, so we naturally support this collaborative effort to ensure agriculture and horticulture businesses can thrive.”
“DOL is exacerbating an already enormously challenging labor crisis for growers and agriculture employers across the country. This lawsuit challenges the unauthorized process through which DOL passed this rule and the unlawful and unconstitutional impacts it has on American agriculture employers,” says IFPA CEO Cathy Burns. “Our industry is dedicated to providing fresh, healthy foods that nourish the world, but without certainty in the H-2A program, which provides farmers access to qualified, valued foreign workers and, likewise, gives those workers the ability to legally work in the U.S., it is much harder for us to grow and harvest the fresh fruit and vegetables consumers want and expect throughout the year. IFPA has challenged the DOL’s damaging regulation at every stage of the rulemaking process, and this lawsuit is the next step in our work to protect the fresh produce industry.”
The lawsuit, filed in the Southern District of Mississippi with representation from McDermott, Will & Emery, requests a permanent injunction of DOL’s Improving Protections for Workers in Temporary Agricultural Employment in the U.S. In August, the court in Kansas v. U.S. Department of Labor – a similar case in the 11th Circuit brought by 17 state attorneys general, the Georgia Fruit and Vegetable Growers Association, and Miles Berry Farm – found the rule unconstitutional and enjoined DOL from enforcing it within the 17 states.
That ruling bolsters the plaintiffs’ position in this case and creates the current untenable situation in which employers in the agriculture industry must abide by different regulations and meet different requirements depending solely on the states in which they are located.
“The Department of Labor’s rule changes the scope and function of the H-2A temporary guest worker program and imposes new obligations on agricultural employers. Years of regulatory burden coupled with congressional gridlock preventing legislative reform of the underlying H-2A statute have created an untenable situation for growers and producers of fresh produce who rely on legal foreign labor,” says Zippy Duvall, President of the American Farm Bureau Federation.
“This attempt by the federal government to slip labor unions onto American farms through the backdoor undermines farmers and threatens the very fabric of the American agricultural community,” says Mississippi Attorney General Lynn Fitch. “Not only has Congress not authorized this, it has specifically exempted farm workers from collective bargaining laws. I am proud to stand with those who grow our food, protecting their livelihoods and their freedoms from this overreach.”
“The rule, and DOL’s bifurcated implementation of it, further exacerbates America’s agriculture labor crisis that is threatening the ability of our farmers to compete and succeed in a global produce market,” says Kasey Cronquist, President of the North American Blueberry Council. “Despite increasing costs of labor caused by an artificially inflated wage rate and compounding regulations, blueberry growers are steadfast in their commitment to the people they employ. NABC is proud to represent blueberry growers across the country and stand alongside our allies in challenging this rule.”
“The Labor Department’s onerous H-2A rule will make it difficult for American farmers and ranchers to meet their critical workforce needs,” says Jon Baselice, Vice President of Immigration Policy, at the U.S. Chamber of Commerce. “It does so by violating the free speech rights of American employers and the legal framework set by Congress decades ago. The rule is already enjoined in 17 states, but the Department has chosen to press ahead in the rest of the country. This regulatory confusion must be stopped, which is why the U.S. Chamber of Commerce is proud to join our allies in filing this suit against this rule today.”
The full complaint and lawsuit can be read on the IFPA’s website.
