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By Don Jenkins, Capital Press

Farmers and agricultural organizations are seeking a nationwide injunction against a Department of Labor rule that allows foreign farmworkers to form unions and makes other changes to the H-2A guestworker program.

A federal judge in Georgia has already blocked the rule in 17 states, including Idaho. A new lawsuit in the U.S. District Court for Eastern Kentucky seeks to extend the preliminary injunction to all 50 states.

WAFLA, a H-2A labor contractor based in Washington state, joined seven Kentucky farmers, the National Council of Agricultural of Employers and three other groups in filing the lawsuit Sept. 16.

The rule micromanages farm operations and exceeds the Labor Department's mandate to prevent abusive employment practices, the lawsuit alleges.

"It feels to me like the Department of Labor is saying, 'We're not just going to tell you how to protect workers. We're going to tell you how to run your business,'" WAFLA CEO Enrique Gastelum said Sept. 18.

The Labor Department finalized the rule in April. Acting Secretary Julie Su said the rule was a significant milestone in making the Biden White House the most pro-worker administration in history.

Attorneys general in the 17 states filed suit, focusing on a provision allowing foreign farmworkers and their U.S. co-workers to form or join unions and engage in "concerted activity."

The attorneys general claimed the rule violated the National Labor Relations Act, which excludes farmworkers from collective-bargaining rights. The Labor Department denies the rule provides for collective bargaining.

U.S. District Judge Lisa Wood in Southern Georgia in August agreed with the AGs and blocked the entire rule, including provisions unrelated to collective bargaining, from taking effect in the 17 states that brought the suit.

The Labor Department announced Sept. 10 it would go ahead and enforce the rule in the other 33 states, beginning Sept. 12. In the other 17 states, the old H-2A rules will apply.

Farms that operate in states with different rules must submit separate orders for workers. The Labor Department's improvised rule violates Congress' intent to have a national program, the lawsuit alleges.

One WAFLA member has a farm straddling the Oregon-Idaho border, Gastelum said.

"We're frustrated with DOL doubling down," he said. "We've got to do something. We can't sit back. This is ludicrous."

Other rule provisions challenged in the Kentucky lawsuit include:

• Employers are responsible for workers wearing seat belts on employer-provided transportation. Previously, employers only had to provide seat belts. Farms shouldn't be liable if an adult unbuckles, according to the suit.

• States must withhold services to farms found by "an appropriate enforcement agency to have violated an employment-related law." States post job openings, a prerequisite to resorting to foreign farmworkers. The rule is vague and will shut farms out of the H-2A program without due process, the lawsuit alleges.

• Workers can invite guests to on-farm housing to help advocate for employment terms. The rule conflicts with the Supreme Court's Cedar Point decision striking down a similar California rule, the lawsuit claims.

• Farms will have to follow a step-by-step procedure to fire workers for cause. The provision will keep workers from being unjustly dismissed, according to the Labor Department. The lawsuit claims it preempts state laws allowing employees to be terminated for any reason. 

Wood's preliminary injunction applies to Idaho, Georgia, Kansas, South Carolina, Arkansas, Florida, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas and Virginia.

The other plaintiffs in the Kentucky lawsuit are the Agriculture Workforce Management Association, the North Carolina Growers Association and USA Farmers.