A coalition of 17 states filed a lawsuit this summer against the US Department of Labor to block a new rule allowing migrant H-2A workers to unionize. That’s a right Congress has not even granted to American farm workers. In late August, the 11th Circuit Court issued an injunction on the rule, but it only applies to those 17 states. Now, in an effort to expand that injunction, the North Carolina Farm Bureau has filed a similar lawsuit on behalf of its members. Jake Parker is Secretary and General Counsel for NCFB.
“The rule is blocked in Virginia, Tennessee, Georgia and South Carolina, but not in North Carolina, because North Carolina wasn’t one of the parties in that lawsuit, which now we feel like at North Carolina Farm Bureau, we have to step in on behalf of our farmer members in North Carolina to get the same type of injunction here.”
Parker says NCFB hopes a new injunction will endure to all 50 states.
“We want a ruling that the law is unlawful under the Administrative Procedure Act. And under the Administrative Procedure Act, the judges who consider those cases are authorized to set the rule aside. That means, DOL, you can’t enforce it at all, and that would have nationwide effect, if we’re successful. Obviously the judge could rule that it just applies in North Carolina, but we believe it’s not lawful period and should be blocked across the country. But we had to move in here and make the move on behalf of our farmer members.”
NCFB believes the Department of Labor overstepped its authority with its final ruling.
“(If) The department wanted, or if farm worker activists and unions, wanted to get this right, they should go to the United States Congress to get it. Using the back door of the regulatory process is not the way to go, and the Administrative Procedure Act allows folks like us to hold them accountable, to that, to hold the agency accountable and make it use the right process. So we we feel like we have a good argument, and we look forward to prosecuting our case and seeing if we can make a good law along the way.”
Another lawsuit along the same lines was filed last week in Kentucky. Parker says it’s possible the case could go to the Supreme Court.
“There are at least three there could be four or more cases in various circuit courts, and depending on what happens in each of those circuits. So we have the 11th Circuit, where the Georgia case is. We, of course, are in the Fourth Circuit. The Kentucky case is in the Sixth Circuit, and so just taking those three there, if you had, let’s say the Fourth and the 11th agree that the rules invalid, but the sixth disagrees, then you could have a case where it could go to the US Supreme Court. Obviously, that’s a long way away, but we at least think our way ahead on that.”
Parker says he hopes the case will result in action by the end of the year.