DOL Suspends Enforcement of Embattled "Farmworker Protection" Rule: What Does it Mean For Agricultural Employers?

Federal officials announced late Friday they were suspending enforcement of what it called “the Biden Administration’s burdensome 2024 farmworker rule,” effective immediately – news that should provide a measure of relief to agriculture employers across the country. The 2024 “Farmworker Protection” Rule, which aimed to amend the H-2A temporary agricultural visa program regulations to boost union organizing, had been blocked in whole or in part by three separate courts, leaving a confusing compliance patchwork in different states and for members of different agricultural associations. The U.S. Department of Labor’s Wage and Hour Division’s June 20 announcement cited the “significant legal uncertainty, inconsistency, and operational challenges for farmers lawfully employing H-2A workers” as the basis for ending enforcement of the 2024 rule. What do you need to know – and what should you do?

Quick Background on Farmworker Protection Rule

The DOL released a final rule in Spring 2024 to expand employment protections for farmworkers in the H-2A visa program and enhance the agency’s capabilities to monitor and enforce program compliance. The rule took effect in some states last summer. You can read more about the rule and our eight key takeaways from its rollout here.

Controversy From the Start

Opponents lined up immediately. Specifically, they argued that the National Labor Relations Act (NLRA) has always excluded agricultural workers from its definition of “employee” since it was enacted as part of the New Deal in the 1930s.

The Georgia Fruit and Vegetable Association, and Republican Attorneys General from 17 states, filed suit and argued that the agency couldn’t backdoor in agricultural workers to receive labor law protections when the exclusive federal statute covering labor relations excluded them. In August 2024, a federal judge in Georgia blocked the rule from being enforced in 17 states: Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia. You can read our recap of that ruling here.

Confusing Patchwork Emerges

Courts in Kentucky and Mississippi joined with the Georgia court by further blocking the labor-organizing provisions of the rule in Fall 2024, but they only blocked certain pieces of the rule on a nationwide basis. Instead, members of the National Council of Agricultural Employers, North Carolina Growers Association, and Worker and Farmer Labor Association (WAFLA) in the 33 states not covered by the Georgia injunction received some relief. This left a confusing patchwork of compliance for agriculture employers across the US.

Friday’s Announcement Offers Relief

The DOL’s June 20 announcement provides much-needed relief from the confusion for the nation’s agricultural employers. “As multiple federal court injunctions have created significant legal uncertainty, inconsistency, and operational challenges for farmers lawfully employing H-2A workers,” the DOL said, “this field assistance bulletin clarifies that the department will not be enforcing the 2024 final rule effective immediately – providing critical predictability for agricultural employers as litigation continues and as the department considers further regulatory action.” 

What’s Next?

Friday’s announcement does not change existing H-2A regulations or limit Wage and Hour’s ability to enforce the H-2A regulations that were in place prior to the 2024 rule. The Biden Administration issued several rules applying to H-2A employers that are still in force. But with the Spring Regulatory Agenda set to be published soon and additional legal challenges proceeding against those other new rules, agricultural employers hope that today’s announcement is the first step towards restoring predictability and addressing operational challenges facing H-2A employers, including the 2023 adverse effect wage rule changes.

Conclusion

We will provide updates as more information becomes available, so make sure you are subscribed to Fisher Phillips’ Insight System to receive updates directly to your inbox. If you have any questions, contact your Fisher Phillips attorney, the author of this Insight, or any member of our Agriculture Team.