Favorable Court Ruling: DOL's H-2A Worker Protection Rule is Blocked in Plaintiff States

Case 2:24-cv-00076-LGW-BWC Filed 08/26/24

There has been a major development in the ongoing litigation to challenge the U.S. Department of Labor (DOL)’s new H-2A Worker Protection Rule. The challenge was filed by the Georgia Fruit and Vegetable Growers Association (GFVGA), Miles Berry Farm, and the attorneys general from seventeen states.

Earlier today, Judge Wood in the U.S. District Court for the Southern District of Georgia issued a preliminary injunction blocking DOL’s enforcement of the new rule. You can read the full ruling HERE.

With this favorable ruling, H-2A applications within the seventeen plaintiff states will continue to be governed by the existing program regulations until the litigation is fully resolved. DOL will not be able to enforce the new regulatory requirements on current or future H-2A applications in the following states:

• Arkansas

• Florida

• Georgia

• Idaho

• Indiana

• Iowa

• Kansas

• Louisiana

• Missouri

• Montana

• Nebraksa

• North Dakota

• Oklahoma

• South Carolina

• Tennessee

• Texas

• Virginia

The Bad News

Regrettably, Judge Wood declined to issue a universal, nationwide injunction. Accordingly, the relief afforded by this ruling is only available to employers located in the seventeen states that served as plaintiffs in the lawsuit.

In practice, this means that DOL will be able to move forward with its implementation of the rule as it pertains to future H-2A applications outside of the seventeen states. As a reminder, the provisions of the Worker Protection Rule will apply to all H-2A applications submitted on or after August 29, 2024.

The Good News

While it is regrettable that not all states were plaintiffs in the case, and/or that Judge Wood declined to issue a nationwide injunction, the result of this case should still be viewed positively by H-2A employers around the country.

The ruling hinged, in large part, on the lack of deference afforded to DOL in the aftermath of the Supreme Court’s recent overturning of the Chevron doctrine. The judge found that DOL had exceeded its statutory authority by creating new rights for H-2A workers not contemplated by Congress, namely the right to collective bargaining and concerted action. It is likely that this case will serve as a blueprint for future challenges to the new rule, giving employers in other states some hope of a future favorable result.

What We Don’t Know

It remains unclear how DOL will be able to selectively enforce this rule on employers in some states but not others. This presents an administrative challenge, particularly given that many provisions of the rule required fundamental changes to the H-2A application forms, which DOL must implement via major changes within the Foreign Labor Application Gateway (FLAG) system.

Accordingly, although the injunction was not nationwide, it is possible that DOL will voluntarily delay implementation of the rule, in part or in whole, for the sake of administrative practicality. It is possible, for example, that DOL will decide to enforce the substantive worker protections while temporarily delaying its enforcement of the new H-2A disclosures.

We will keep you apprised of any additional developments as the situation unfolds and promptly notify you if there are any changes to your circumstances— if you are not a client, be sure to subscribe to our newsletter to receive future communications. As always, don’t hesitate to contact us if you have any questions or concerns.