Labor & Employment Law Daily Wrap Up, IMMIGRATION—E.D.N.C.: Foreign farm workers, DOL win challenge to Biden-era rule providing protections, (May 7, 2025)

By Cathleen Calhoun, J.D.

The court noted that the DOL “found that H-2A visa workers represent a population especially vulnerable to exploitation…”

A final rule affecting agricultural workers temporarily employed through the H-2A visa program, agricultural employees engaged in corresponding employment, and their employers, was unsuccessfully challenged by a trade group representing North Carolina farmers. The trade group alleged that the rule, entitled “Improving Protections for Workers in Temporary Agricultural Employment in the United States,” and published April 29, 2024, was unlawful and violated the major questions doctrine, exceeded the Department of Labor’s (DOL) authority under the Immigration Reform and Control Act (IRCA), was the result of arbitrary and capricious agency action, and conflicted with the National Labor Relations Act. The North Carolina district court disagreed and granted summary judgment to DOL (North Carolina Farm Bureau Federation v. DOL, No. 5:24-CV-00527-FL (E.D.N.C. May 5, 2025)).

Final rule. The complaint challenged the entirety of the final rule, but only arguments against the amendments to 20 C.F.R. § 655.135(h), and the parallel provision at 29 C.F.R. § 501.4(a)) and 20 C.F.R. § 655.135(m) and (n), related to “Protections for Worker Voice and Empowerment,” were raised. Overall, the challenged portions of the final rule related to the prohibitions against unfair treatment by an employer toward employees who have filed a complaint related to 8 U.S.C. 1188, or testified in a case, sought legal advice, or other participated in other specified actions.

Major questions doctrine. The court agreed that agriculture is an economically and politically significant industry. However, despite that, the court found if could not conclude that “a regulation raises a major question simply because it relates to an important industry.”

IRCA. The U.S. Supreme Court’s recent Loper Bright decision was quoted multiple times in reaching the court’s finding that the DOL did not exceed its authority under the IRCA: “When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits.” Additionally, the court found that the DOL determined that it could not prevent adverse effect on the wages and working conditions of domestic workers without the additional assurances required by the final rule. As a result, the promulgation of the final rule fell within the DOL’s authority to “fill up the details” of its statutory directive, according to the court.

Arbitrary and capricious. According to the court, the DOL found that H-2A visa workers represent a population especially vulnerable to exploitation because of “the temporary nature of the work, frequent geographic isolation of the workers, and dependency on a single employer” and that retaliation against H-2A workers for asserting or advocating for their rights remains common. The court noted that the final rule does not require agricultural employers to enter any agreements and does not mandate that H-2A employers engage with labor unions or process dues checkoffs. As a result of these and other reasonings, the court found that that the DOL considered the necessary aspects of the issues and provided sufficient justification for its decision. The issuance of the final rule, therefore, was not arbitrary or capricious, according to the court.

National Labor Relations Act. The trade group argued that the final rule conflicts with the NLRA by improperly providing agricultural workers with “NLRA-style rights.” The court disagreed, noting that the final rule does not classify any act as an unfair labor practice, does not restrict proactive interference, and does not require H-2A employers to bargain with anyone. The trade group also argued the final rule conflicts with the NLRA because the requirement that H-2A employers allow agricultural employees to designate a representative to attend certain investigatory interviews “is almost a carbon copy” of the U.S. Supreme Court’s interpretation of the NLRA in NLRB v. Weingarten. The court acknowledged that the language of the final rule “mirrors portions of the NLRA” but stated that the DOL made clear that it did not intend the final rule to apply beyond its statutory mandate. “Because nothing in the Final Rule requires such ‘mutual obligation’ or ‘negotiation,’ it does not convey a right to collectively bargain,” the court found.

The case is No. 5:24-CV-00527-FL.

Judge: Flanagan, L.

Attorneys: Alyssa Riggins (Nelson Mullins Riley & Scarborough) for North Carolina Farm Bureau Federation, Inc. Michael James Gaffney, U.S. Department of Justice, for the U.S. Department of Labor.

Companies: North Carolina Farm Bureau Federation, Inc.; U.S. Department of Labor

Cases: Immigration FederalRegulations AgencyNews NorthCarolinaNews