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Announcement

The following two final rules affect the Wagner-Peyser Act Employment Service (ES), including ES services that State Workforce Agencies (SWA) provide to migrant and seasonal farmworkers (MSFW). Note the new information added on December 10, 2024 regarding additional district court orders affecting implementation of the Farmworker Protection Final Rule under item 1 below.

1. Farmworker Protection Final Rule, 89 FR 33898, April 29, 2024. The Improving Protections for Workers in Temporary Agricultural Employment in the United States (Farmworker Protection Final Rule) amended the regulations governing the H-2A program at 20 CFR part 655, subpart B, and 29 CFR part 501, as well as the Employment Service (ES) regulations at 20 CFR parts 651, 653, and 658. The ES amendments include changes related to the Agricultural Recruitment System and the bases and procedures for SWAs’ discontinuation of ES services to employers. 
   
   District Court Orders Affecting Implementation of the Farmworker Protection Final Rule: 

   • Southern District of Georgia: On August 26, 2024, the United States District Court for the Southern District of Georgia issued a preliminary injunction in the case Kansas, et al. v. U.S. Department of Labor, No. 2:24-cv-00076-LGW-BWC (S.D. Ga., Aug. 26, 2024) (“Kansas”), prohibiting the Department from enforcing the Farmworker Protection Final Rule in certain states and with respect to certain entities. The preliminary injunction specifically prohibits the Department from enforcing the Farmworker Protection Final Rule in the states of Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia, and against Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024.
      

   • Eastern District of Kentucky: On November 25, 2024, the United States District Court for the Eastern District of Kentucky issued a preliminary injunction in the case Barton, et al. v. U.S. Department of Labor, et al., No. 5:24-cv-249-DCR (E.D. Ky., Nov. 25, 2024) (“Barton”), enjoining and restraining the Department from implementing, enacting, enforcing, or taking any action in any manner to enforce certain provisions of the Farmworker Protection Final Rule. Specifically, the Barton order applies to the following provisions:

     • Seatbelt modifications to enhance safety requirements including but not limited to 20 C.F.R. § 655.122(h)(4);
     • Any and all worker voice and empowerment provisions, and provisions allowing workers to invite and accept guests under 20 C.F.R. § 655.135 and any and all parallel provisions under §501.4, including but not limited to 20 C.F.R. § 655.135(h), § 655.135(m), and § 655.135(n);
     • Updated information collection requirements including but not limited to 20 C.F.R. § 655.130(a); and
     • New minimum pay requirements including but not limited to 20 C.F.R. § 655.120(a) and 655.122(l).

     The Barton preliminary injunction is effective within the Commonwealth of Kentucky and the States of Alabama, Ohio, and West Virginia. In addition, the Department is enjoined from enforcing those subject provisions of the Farmworker Protection Final Rule in connection with the activities of the following plaintiffs to the proceeding, including any members of any association or entity which is a plaintiff to the proceeding as of the effective date of the preliminary injunction (November 25, 2024): Richard Barton; Doug Langley; Benny Webb; Dale Seay; David DeMarcus, II; David De Marcus, Sr.; Steve Stakelin; Agriculture Workforce Management Association, Inc. (including its shareholders/members); North Carolina Growers’ Association, Inc. (including members of that non-profit association); Workers and Farmer Labor Association, also known as “Wafla” (including members of that non-profit association); USA FARMERS, Inc. (including members of that non-profit association); National Council of Agricultural Employers (including members of that non-profit association).

   • Southern District of Mississippi: On November 25, 2024, the United Stated District Court for the Southern District of Mississippi issued a Section 705 stay in International Fresh Produce Association, et al. v. U.S. Department of Labor, et al., No. 1:24-cv-309-HSO-BWR (S.D. Miss., Nov. 25, 2024) (“IFPA”), staying the effective date of 20 C.F.R. § 655.135(h)(2) and (m) in the Farmworker Protection Final Rule nationwide until the conclusion of proceedings in the case, including any appellate proceeding.

   Notice Related to District Court Orders on Rule Implementation
   The Department will issue additional information on its ongoing compliance and implementation of these orders as soon as possible. Until additional guidance is published by the Department, please refer to the information below:

   • Forms: As of November 27, 2024, all employers (or employers’ authorized attorneys or agents) are directed to prepare and submit non-criteria (not connected to H-2A applications) intrastate or interstate clearance orders using the forms applicable under the version of 20 CFR part 653, subpart F in effect on June 27, 2024.
   • Training & Employment Notice (TEN) 27-23, Change 1 (issued October 2, 2024): See TEN 27-23, Change 1, sections 4(a)(i), 4(a)(iii), and 4(c) for additional information on implementation of the amendments to the ES regulations at 20 CFR parts 651, 653, and 658.
   • For information on the H-2A certification process, please visit the Office of Foreign Labor Certification webpage.
2. Wagner-Peyser Act Staffing Final Rule, 88 FR 82658, November 24, 2023. The final rule requires states to use state merit staff to provide ES services, including ES services to MSFWs. The final rule also makes changes to 20 CFR parts 651, 652, 653, 654, and 658 to strengthen ES services that states provide to MSFWs and to enhance worker protections. For more information, see Training and Employment Notice No. 10-23 and a webcast on WorkforceGPS, which provide a summary of the changes.