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U.S District Court issues preliminary injunction against US DOL on H-2A drivers
Story Date: 12/26/2019
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Source: AGSAFE, 12/23/19
For those members who have been following this issue since the Spring of 2019, the U.S. Department of Labor previously issued two decisions that rejected employer applications for H-2A drivers on the basis that some in their activities in transporting harvested produce “off-the-farm” did not constitute “agricultural labor” or an “agricultural service” under the H-2A regulations. Therefore, the applications for these H-2A workers were denied! Based on these decisions, a number of other employer applications for H-2A drivers have also been denied to contractors who provide workers to employers under the H-2A program.
This shift in how the DOL interprets the term “agricultural labor” came without any prior notice to the agricultural industry, and in particular, to a Florida-based agricultural labor contractor who brought the lawsuit. VCAA has been working with an H-2A employer who was undergoing similar experiences with his applications. As a result of the Court’s decision, the DOL must review the six H-2A agricultural guest worker applications for truck drivers that it abruptly denied after years of consistently approving them.
It should be noted that the current H-2A regulations contain no mention of the DOL’s apparent new requirement that workers perform only agricultural work and not any other type of work to qualify for the visa. According to U.S. District Court Judge, Richard Leon, “To me, at least at this admittedly preliminary stage, the better reading of the statute and its context allows for non-agricultural work to be included, so long as agricultural work predominates.” In other words, so long as the majority of the H-2A drivers work is performed on the farm.
Contrary to the DOL’s interpretation, the law and regulations also allow employees of agricultural labor contractors to perform hauling duties on a farm site, the Court said.
Congratulations to Mr. Chris Schulte of the CJ Lake Law Firm in Washington D.C., who represented the labor contractors. Mr. Schulte noted that prior to this case, the DOL had “routinely approved” such applications for H-2A drivers, but “this year they were denied verification across the board”. It should be stressed that this decision applies only to the six applications that were rejected. Nevertheless, it demonstrates that the Federal Courts will not allow the DOL to make such abrupt changes in the applications process without going through the Federal Administrative Procedures Act.
The case is Everglades Harvesting and Hauling, Inc. v. Scalia, D.D.C., No. 1: 2019-cv-03291 (12/16/19).
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