US judge Blocks Biden Rule on H-2A Farmworker Union Organizing

By Daniel Wiessner

A federal judge in Georgia has blocked the Biden administration from enforcing a rule that bars employers from retaliating against farmworkers who are in the U.S. on temporary H-2A visas and trying to form unions in 17 Republican-led states.

U.S. District Judge Lisa Wood in Brunswick, Georgia, said on Monday that the U.S. Department of Labor rule is invalid because Congress explicitly excluded farmworkers from such protections when it granted them to other private-sector workers in the National Labor Relations Act.

Wood granted a preliminary injunction to the states led by the office of Republican Kansas Attorney General Kris Kobach, along with an agricultural trade group and a Georgia berry farm, pending the outcome of their lawsuit filed in June, the same month the rule went into effect.

The U.S. Department of Justice, which is defending the rule, did not immediately respond to requests for comment.

Kobach in a statement criticized the Biden administration for trying to extend rights to H-2A holders that are not granted to American farmworkers.

“That’s why Kansas took the lead in filing this lawsuit. The rule of law has prevailed,” he said.

Agricultural businesses in the U.S. have come to rely increasingly on temporary immigrant workers to perform seasonal work. The Labor Department issued nearly 300,000 H-2A visas in fiscal year 2022, up from fewer than 60,000 a decade earlier.

The rule adopted earlier this year bars retaliation against H-2A workers who engage in concerted activity, including union organizing. The NLRA grants those protections to most other private-sector employees, but not farmworkers.

The department and supporters of the rule have said it is necessary to address the exploitation of H-2A holders by some businesses. Many foreign workers are housed in cramped, unsanitary conditions and subjected to sexual and racial harassment and wage theft, according to the department.

But the states in their lawsuit say Congress never gave the Labor Department the power to grant organizing rights to H-2A workers.

Wood, an appointee of Republican former President George W. Bush, on Monday said the department does have the authority to adopt labor regulations governing the H-2A program. But Kansas and the other states were correct that the rule is invalid in light of the NLRA’s exclusion of farmworkers, she said.

Wood cited the U.S. Supreme Court’s June ruling in Loper Bright Enterprises v. Raimondo, which overturned a 40-year-old legal doctrine requiring courts to defer to agencies’ interpretations of laws they enforce that are ambiguous.

Loper Bright instead requires judges to independently decide whether agencies have acted within the boundaries set by Congress, Wood wrote.

The case is Kansas v. U.S. Department of Labor, U.S. District Court for the Southern District of Georgia, No. 2:24-cv-0076.

This article was originally published on Reuters.com.