NCAE files legal challenge to H-2A Program Rule 

The National Council of Agricultural Employers has filed a legal challenge to a new H-2A Program Rule that is set to take effect on Nov. 30.

The Department of Labor said in October the new regulation:

• Improves safety and health protections for workers housed in rental or public accommodations. 
• Streamlines and updates bond requirements for labor contractors to better hold them accountable and clarifies joint-employer status for employers and associations. 
• Clarifies the housing certification process to allow state and local authorities to conduct housing inspections. 
• Establishes explicit authority to debar attorneys and agents for their misconduct, independent of an employer’s violations. 
• Makes electronic filing mandatory for most applications to improve employers’ processing efficiency.
• Modernizes the methodology and procedures for determining the prevailing wage to allow state workforce agencies to produce more prevailing wage findings.

The lawsuit filed by the NCAE in late November alleges that the Department of Labor has, “unlawfully repealed a final rule duly issued, prescribed, or promulgated to achieve DOL’s statutory mandate set forth in the Immigration and Nationality Act,” according to a news release.

The action, the release said, was filed in the District of Columbia District Court. The lawsuit cites six causes of action and seeks a preliminary injunction, a permanent injunction, a stay of its implementation, as well as costs, among other relief. 

“The nature of the changes will have a dramatic and negative effect on U.S. farm and ranch families whether they use the H-2A program or not,” Michael Marsh, NCAE president and CEO, said in the release. “The Trump Administration issued a rule that was a final agency action. However, on Inauguration Day, which is a federal holiday, the new Biden Administration unlawfully withdrew the Trump Rule from publication at the Federal Register without any of the required public notice and comment. The new Administration then substantially changed the rule Trump’s DOL had created to the detriment of farm and ranch families and again, failed to provide opportunity for required notice and comment. The actions here were clearly arbitrary and capricious and an abuse of discretion by the Secretary and otherwise not in accordance with law.”

The release said recent analysis performed on the impact of this new regulation by the Cato Institute, indicates that the rule will place more burdens on growers and ranchers and “will add to the already sky-rocketing food prices in the United States.”

“This regulation is a lose-lose-lose scenario,” Marsh said in the release. “The farm and ranch families we represent lose, the essential farmworkers our members work with every day lose, and it hits consumers in the pocketbook. We must seek relief from this arbitrary and capricious regulation. The Secretary must follow the law and it is in the public interest that the U.S. government does just that.”