NEW
Devastating Decision for Farmworkers:
Federal
court in North Carolina halts suspension of Bush H-2A rules
June 29, 2009
In December of last year, the Bush Administration and then-Secretary
of Labor Elaine Chao issued new
regulations for the H-2A guest worker program that made
devastating changes in job terms, labor protections and government
oversight
for farmworkers. Last May, the Obama Administration and current Secretary of Labor Hilda
Solis issued a decision to temporarily suspend those changes.
On June 29, 2009, the day on which the regulations were to be
suspended, a North Carolina federal court issued a dire ruling
temporarily stopping the suspension. This ruling (a preliminary
injunction) will apply throughout the country and means that the
devastating impact of the Bush-Chao regulatory changes to the H-2A
guestworker program will continue to harm farmworkers nationwide.
The ruling resulted from a lawsuit brought by agricultural employers,
including the North Carolina Growers’ Association, the National
Council of Agricultural Employers and several others, against the
Department of Labor. The growers alleged that DOL had acted illegally
in its decision to suspend the Bush-Chao H-2A regulations and
reinstate the former regulations. The United Farm Workers (UFW) and
individual farmworkers intervened in the lawsuit as defendants to
oppose the growers’ demand for a preliminary injunction. Farmworker
Justice is co-counsel in the case.
The Court’s ruling agreed with the growers that Secretary of Labor
Hilda Solis probably acted illegally in suspending the Bush-Chao H-2A
regulations. The Court noted that the H-2A growers would suffer
irreparable harm if not permitted to pay the lower wage rates that the
Bush regime allowed, but was dismissive of farmworker arguments that
farmworkers would in turn get lower pay. So farmworkers in North
Carolina will continue to receive lower wages; for example, $7.25 per
hour or $8.10 an hour, rather than the $9.34 per hour they should be
paid. Other negative effects of the continuation of the Bush-Chao
regulations will continue to harm farmworkers, both US workers and
H-2A workers.
Farmworker Justice strongly disagrees with this ruling. Secretary of
Labor Solis acted lawfully in implementing the suspension of the Bush
regulations and her decision was the right one. We urge the
Department of Labor to appeal this decision immediately. The Court’s
decision is devastating for farmworkers.
Along with the UFW, FLOC,
Pineros y Campesinos Unidos del Noroeste/Northwest Treeplanters and
Farmworkers United (PCUN), and other advocates, Farmworker Justice is determined to continue
fighting against the harmful Bush regulations and for farmworkers
rights. Our lawsuit against the Bush regulations in the DC federal
court continues and we are examining additional options.
Background
As noted above, in December of last year, the Bush Administration’s
Secretary of Labor Elaine Chao issued new
regulations for the H-2A guest worker program that made
devastating changes in job terms, labor protections and government
oversight
for farmworkers. The changes contravene our nation’s most basic labor
and immigration policy concepts.
On
January 12, 2009, before the Bush-Chao regulations went into effect,
the UFW, PCUN, and eight individual farmworkers (U.S. and H-2A
workers) filed suit in the U.S. District Court for the District of
Columbia against the Department of Labor to stop the devastating new
regulations. This lawsuit challenged the legality of the Bush-Chao
regulations. The plaintiffs (the farmworker
unions and individual farmworkers) sought a preliminary injunction to
prevent the new regulations from going into effect, but the Court
denied them on the ground that at that time there was no evidence of
the actual harm that would result from implementation of the Bush-Chao
regulations (the Court said it was too early and that we were
speculating about the harm). The Bush-Chao regulations became
effective on January 17, 2009, just three days before Bush left
office. We have since filed another motion
challenging the legality of the lower wage rates under the Bush-Chao
regulations and that motion is currently pending in the Court.
On March 17, 2009, Secretary Solis published in the Federal Register a
proposal to temporarily suspend the Bush H-2A regulations, reinstate
the former regulations, and begin drafting new regulations for later
publication. The public was given an opportunity to comment on the
proposed suspension. Many worker groups and grower organizations
submitted comments.
On May 29, the Secretary announced her decision to suspend the Bush-Chao
regulation temporarily, effective June 29, until the regulations could
be rewritten. She decided to reinstate the former regulations, but
“grandfathered” the H-2A employers who had already applied under the
Bush-Chao regulations, so that they would not be affected by the
suspension. Only employers filing after June 29 would be affected by
the suspension.
On June 9, agricultural employer groups sued Secretary Solis over the
decision to suspend the Bush-Chao decision in federal court in the
Middle District of North Carolina in Greensboro. The growers asked
the Court for a Preliminary Injunction to stop the Department of Labor
from suspending the Bush-Chao regulations. The UFW and individual
farmworkers intervened in the case and argued that the growers should
not begranted an injunction. Farmworker Justice served as co-counsel
in the case.
On June 29, the day the suspension took effect, U.S. federal judge
William Osteen, Jr., entered a preliminary injunction, prohibiting
Secretary Solis from suspending the Bush-Chao regulations and
reinstating the former regulations. Judge Osteen said that the
Administrative Procedure Act had not been followed. As a result of
this Preliminary Injunction which is now in effect throughout the
country, the Bush-Chao regulations continue to govern the H-2A
program. The consequence is that agricultural employers who apply for
H-2A guest workers will continue to be able to offer the lower wage
rates and other lower benefits, avoid hiring U.S. workers under the
former regulations’ job preference, and evade government oversight in
the application process.
DOL
Withdraws Interpretation of the Fair Labor Standards Act Concerning
Relocation Expenses
On March 26, 2009, DOL published a separate notice
in the Federal
Register that it was, effective immediately, officially withdrawing an
interpretation of the Fair Labor Standards Act (a rejection of the
Arriaga case) published on December 18 and 19 in the New H-2A and
H-2B regulations. The interpretation was included in the Preambles to
both new regulations.
Farmworker Justice supports DOL’s withdrawal of the flawed
interpretation and urges DOL to act promptly to issue an affirmative
statement about the impact of the Arriaga decision.
In December, when the Bush Administration published the final version
of their new rules for our nation’s agricultural guestworker program,
it included in the Preamble a discussion of a 2002 court case,
Arriaga v. Florida Pacific Farms. In this case, the court ruled
that employers have to reimburse transportation costs and visa costs
of the guestworkers they hire if those expenses made the workers'
wages drop below the federal minimum wage. The reasoning is that
because they are costs incurred primarily for the benefit of the
employer, they must be treated as deductions from wages. The decision
was based on similar rulings in other situations and was then followed
by other courts.
Without providing any opportunity for notice and comment from the
public on this important matter, the Bush Administration unlawfully
concluded in the Final Rule’s Preamble that Arriaga was
“wrongly decided.”
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