Georgia judge rules in favor of states against new labor rule for farmworker protections

UPDATE: On Wednesday the U.S. Department of Labor announced a nationwide delay on the implementing rule, for an indefinite amount of time, as it reviews the judges order. That means H-2A workers entering the country for the upcoming harvest season will not be subject to the updated protections.

A federal judge out of Georgia’s Southern District Court in Brunswick ruled in favor of 17 states, including Georgia, to halt the full implementation of a new Department of Labor rule meant to expand protections for seasonal farm workers. 

The judge’s preliminary injunction means employers on farms in Georgia and other suing states won’t have to follow the new rule, for now. 

RELATED: Georgia growers part of group saying new rules for migrant farm workers go too far

District Court Judge Lisa Godbey Wood said in the ruling that there wasn’t a strong enough argument for a nationwide injunction on the rule, which the Department of Labor finalized earlier this year for implementation this summer. 

The DOL rule, Improving Protections for Workers in Temporary Agricultural Employment in the United States, is meant to address violations under the federal H-2A visa program. 

Georgia is one of the states with the most H-2A workers in the country, employing around 37,000 last year. 

But plaintiffs including the Georgia Fruit and Vegetable Grower’s Association and Miles Berry Farm out of Baxley in Southeast Georgia argue that it violates the U.S. Constitution. 

Part of the added protections create a process to prohibit retaliation for labor and self organizing. Agriculture workers have been left out from protections for union organizing since the National Labor Relations Act of 1935. 

“The states argue that, if the Final Rule were enacted, alien agricultural workers would receive rights that American citizens working agricultural jobs do not enjoy,” reads the decision issued Monday. 

At the center of the plaintiff’s argument is that the Department of Labor shouldn’t have the regulatory power to change decades of policy, power they defer to Congress. 

Ultimately, the judge in this case agreed, writing that by implementing the new rule “the DOL has exceeded the general authority constitutionally afforded to agencies” and that it violates the NLRA. 

Kelsey Eberly, attorney with FarmSTAND, represented parties in support of the rule in an amicus brief. Those who signed on included Georgia Legal Services and the United Farm Workers Foundation with staff in Tifton and Hazelhurst. 

She said Monday's decision, while not final, adds to a growing movement against farm worker rights reform. 

“As these gains are made in the legislature or as regulatory improvements are made, agribusiness is very quick to challenge those in court,” she said. 

Eberly said they are seeing an increased need to defend the legality of such programs, especially as agriculture becomes more and more reliant on programs like H-2A which has seen its workers  vulnerable to abuse and neglect. But also to defend state mandated changes like for better wages or overtime protections.

Eberly also pointed out a main argument from the amicus brief, that the reform to H-2A in turn protects domestic farm workers, by helping prevent what she calls a “race to the bottom,” a scenario where a lack of regulation pushes agriculture employers to prefer cheaper, more vulnerable foreign labor. 

“One way of ensuring that, the main way that the statute envisions, is to set a floor for minimum wages and working conditions,” said Eberly.

But the Monday ruling is particularly tricky, Eberly said, because it puts a halt to the entire rule in the 17 states involved rather than just the provisions originally challenged. 

“The fundamental health and well-being of thousands of workers who were part of the H-2A program is now in jeopardy because of this overbroad order in this case,” she said. 

Late Tuesday, the Department of Labor asked the district court to reconsider its decision and better tailor the injunction to those original concerns regarding “worker voice and empowerment," "to avoid potential confusion among the regulated public." 

It requested a response from the court by Thursday, citing August 29th as the date when it intends to put into effect many provisions of the new rule. 

Attorney Brandon Boucek of the Southeastern Legal Foundation said in a statement that the judge’s ruling upholds the separation of powers. 

“The decision recognizes that no matter how much the White House tries, it cannot simply ignore federal law or rewrite laws all on its own,” Boucek wrote. 

For Georgia’s Agriculture Commissioner, Tyler Harper, the cost of implementing the rule brings up specific concerns. He said like everyone, farmers are already facing increased costs for food and supplies, and that annual wage adjustments mandated under the H-2A program are already a burden. 

“Any type of regulation that would significantly continue to hamper or impose the ability for the American farmer to continue to be successful … those are things that we've got to really take a hard look at,” Harper told GPB. 

That’s been an argument made in the lawsuit too, with plaintiffs alleging they face irreparable monetary injury if the rule was implemented, like over administrative costs. 

Meanwhile, it’s important to note that the DOL has documented pervasive wage theft from seasonal farm workers. One analysis over several years estimated agriculture employers investigated by the DOL owed over $70 million in back wages and over $60 million for workplace violations. 

Ultimately Boucek, representing parties from Georgia, said “we are prepared to fight” as the case moves along.”