Once again, instead of taking the case to a federal court in Atlanta, where the judge may not be friendly and the chances of focused news coverage higher, the state of Georgia sued the federal government in the federal district court in Brunswick.
Sixteen other states, the Miles Berry Farm in Baxley, and the Georgia Fruit and Vegetable Growers Association (GFVGA) joined with Georgia in filing suit against the U.S. Department of Labor (DOL) in order to scrap the agency’s new rule meant to provide protections to temporary farm workers who are employed under H-2A visas.
Leading the fight here is the Southeastern Legal Foundation (SLF), a nearly 50-year-old organization with a long record of participating in the conservative movement’s culture wars in the courts, along with some of the hotter-button conservative economic complaints. SLF represents both Miles Berry Farm and the GFVGA.
The DOL rule, which goes into effect June 28, covers a number of issues relating to the rights and safety of H-2A workers.
H-2A visas allow foreign workers to fill temporary agricultural jobs for which companies can’t find enough American workers. The federal government approved close to 380,000 available H-2A job openings in 2023. As well, the DOL Wage and Hour Division reviewed its investigations over the last five years and discovered labor law violations in 88% of those investigations.
“H-2A workers too frequently face abusive working conditions that undercut all farmworkers in the U.S.,” Acting Labor Secretary Julie Woo said in a statement in April when the agency announced the rule. “This rule ensures farmworkers employed through the H-2A program are treated fairly, have a voice in their workplace and are able to perform their work safely.
“It also promotes employer accountability, benefitting all farmworkers by upholding labor standards. The Biden-Harris administration is committed to being the most pro-worker administration in history, and this rule is a significant milestone in that effort.”
A couple aspects of the rule deal with human trafficking — it has disclosure requirements regarding contracts with and contact information for foreign worker recruiters, along with a ban on employers holding or confiscating a worker’s passport, visa or other identification document. Another aspect of the rule mandates working seat belts in worker transportation.
In order to toss out the rule, though, the states and the farming plaintiffs focused solely on the provisions that allow these particular farmworkers the right to organize and protections against some union-busting activities.
“To justify this unlawful — and counterintuitive — Final Rule, the Department points to its employer-certification authority under the Immigration and Nationality Act,” according to the complaint. “But that certification authority exists to protect American workers and to prevent Americans’ wages from being adversely affected by the H-2A system.
“That is fundamentally at odds with what Defendants want to do here, which is give temporary foreign workers collective bargaining rights that American farmworkers lack. Defendants’ actions are wrong and, more importantly here, unlawful.”