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In a significant legal development, a federal judge in Georgia ruled this week that a Labor Department regulation allowing H-2A farmworkers to engage in advocacy and self-organization is unconstitutional. The ruling, issued by U.S. District Judge Lisa Godbey Wood, blocks the enforcement of the rule in 17 states, asserting that it conflicts with the National Labor Relations Act (NLRA).
The regulation, introduced this April, was designed to protect H-2A visa-holding farmworkers from retaliation if they engaged in activities related to self-organization, such as forming or joining labor organizations or participating in concerted activities to improve wages or working conditions. However, Judge Wood found that this provision effectively granted new collective bargaining rights that Congress had not authorized.
While the ruling prevents the Labor Department from enforcing these protections in Florida, Georgia, South Carolina, Louisiana, Arkansas, Kansas, Idaho, Indiana, Iowa, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, and Virginia, it does not extend nationwide. Judge Wood tailored the injunction to the states involved in the complaint, including plaintiffs Miles Berry Farm in Baxley, Georgia, and the Georgia Fruit and Vegetable Growers Association.
The government contended that the regulation did not violate the NLRA because it did not mandate that H-2A employers recognize labor organizations or engage in collective bargaining. However, Judge Wood dismissed this argument, stating that the essence of the issue was whether the rule conferred new rights not established by Congress.
“Regardless of the terminology used in the final rule—whether it’s collective bargaining or otherwise—the rule provides agricultural workers the right to participate in concerted activity to further their interests. That is a right that Congress has not created by statute,” said Judge Wood.
Judge Wood concluded that the Labor Department overstepped its constitutional authority by enacting the rule. Citing a 2001 Supreme Court decision, she remarked, “Agencies may play the sorcerer’s apprentice but not the sorcerer himself. The final rule is an attempt by the DOL to play the sorcerer. The DOL may assist Congress, but may not become Congress.”
NPC is continuing to monitor how DOL will implement the new rule outside of the 17 states under the injunction.
