View original article in the Capital Press

By Don Jenkins

Federal judges in Kentucky and Mississippi in November will hear motions asking for a nationwide hold on a Biden administration rule allowing foreign farmworkers to form legally protected unions.

A federal judge in Georgia has stayed the rule in 17 states, including Idaho, but it remains in effect in the other states. In response, the Department of Labor has instituted two sets of rules for the H-2A program.

The conflicting rules have caused confusion for farms operating in states with different rules, according to court filings. A farm straddling the Idaho-Oregon border declared it anticipates spending tens of thousands of dollars to comply with two sets of application, record-keeping and wage rules.

"We were pleased to see what happened in Georgia, but unfortunately, it was only partial relief and the rest of the country needs relief," National Council of Agricultural Employers President and CEO Michael Marsh said.

"I'm looking forward to having our day in court. It needs to be resolved and the sooner the better," he said.

The rule allows foreign farmworkers and U.S. farmworkers on the same farm to join or form unions and to take concerted action to improve working conditions without fear of retaliation.

The Biden administration argues the rule will protect vulnerable foreign farmworkers and in turn benefit their U.S. co-workers. It denies the rule goes as far as granting farmworkers collective-bargaining rights.

U.S. District Judge Lisa Wood in Georgia in August disagreed and ruled it violated the National Labor Relations Act, which excludes farmworkers from bargaining rights. She limited the ruling to 17 states bringing the suit.

In declining to issue a nationwide injunction, Wood said she wanted to give other judges a chance to make their own decisions. The limited stay inspired similar lawsuits in Kentucky, North Carolina and Mississippi. 

Other parts of the rule, such as making farms responsible for workers not wearing seat belts in company vehicles, are being challenged, but the union-organizing provision has drawn the most attention.

The Labor Department claims the rule complies with a congressional mandate to ensure the use of foreign farmworkers doesn't worsen working conditions for U.S. farmworkers.

Farm groups and 22 state attorneys general argue the Labor Department has conjured up new rights for farmworkers without Congress passing a new law authorizing them.

U.S. District Judge Denny Reeves in Kentucky will hear a motion Nov. 4 for a nationwide preliminary injunction filed by seven farmers and five groups, including the Worker and Farm Labor Association in Washington.

U.S. District Judge Halil Suleyman Ozerden on Oct. 22 set a hearing for Nov. 18 in Gulfport, Miss., on a motion filed by the American Farm Bureau, U.S. Chamber of Commerce, Mississippi and others.

In a court declaration filed in Kentucky, Idaho grower Brad Watson stated the farm's 117 H-2A employees and 51 U.S. employees all work in Canyon County, Idaho, and Malheur County, Oregon.

The farm can't assign half its worforce to work and live in Oregon and the other half to live and work in Idaho, he stated.

"To expect us to simultaneously, and accurately, maintain compliance with two contradictory regulatory programs is unreasonable," Watson stated.