The U.S. Department of Labor (Department) has published the final rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States(link is external)” (the “Farmworker Protection Rule”). The Farmworker Protection Rule is effective June 28, 2024. On August 26, 2024, the United States District Court for the Southern District of Georgia issued a preliminary injunction order in the case Kansas, et al. vs. U.S. Department of Labor, No. 2:24-cv-00076-LGW-BWC (S.D. Ga., Aug. 26, 2024) (“Kansas”) prohibiting DOL from enforcing the Farmworker Protection Rule in certain states and with respect to certain entities. The preliminary injunction specifically prohibits DOL from enforcing the Farmworker Protection Rule in the states of Georgia, Kansas, South Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, and Virginia, and against Miles Berry Farm and the members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024.

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 Rule. Specifically, the Barton order applies to the following provisions:

  • Seatbelt modifications to enhanced 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).

See Barton, slip op. at 40-41.

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 Rule in connection with the activities of the following plaintiffs to the proceeding, including any members of any association or entity that 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).

On November 25, 2024, the United States 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 Rule nationwide until the conclusion of proceedings in the case, including any appellate proceedings.

DOL is complying with the court orders. For more information on the certification process, please visit https://www.dol.gov/agencies/eta/foreign-labor.

Employers must continue to comply with all applicable H-2A regulations that are not otherwise enjoined or stayed.

The U.S. Department of Labor (Department) has published the final rule, “Federal Register: Improving Protections for Workers in Temporary Agricultural Employment in the United States(link is external).” The final rule strengthens protections for temporary agricultural workers by making several changes to H-2A program regulations to bolster the Department’s efforts to prevent adverse effect on workers in the U.S. and ensure that H-2A workers are employed only when there are not sufficient able, willing, and qualified U.S. workers available to perform the work. These changes include empowering workers to advocate on behalf of themselves and their coworkers regarding working conditions; improving accountability for employers using the H-2A program; improving transparency and accountability in the foreign labor recruitment process; requiring seat belts in most vehicles used to transport workers; enhancing existing enforcement provisions; improving transparency into the nature of the job opportunity by collecting additional information about owners, operators, managers, and supervisors to better enforce program requirements; clarifying when a termination is “for cause” to protect essential worker rights; and revising provisions and codifying protections that are outdated, unclear, or subject to misinterpretation in the current regulations. The final rule also strengthens protections for temporary agricultural workers when employers fail to properly notify workers that the start date of work is delayed, and clarifies and streamlines procedures to prevent noncompliant employers from using the Employment Service.

 

Additional Information

For additional information and resources, please visit the Wage and Hour Division’s / Employment and Training Administration’s website.