Federal Court Rejects Agribusiness Attack on Obama Administration Rules on Agricultural Guestworkers
Secretary of Labor Solis’s Policy on Migrant Farmworkers Remains in Force
Today, Judge Osteen of the U.S. District Court for the Middle District of North Carolina, in Greensboro, held a hearing on the request for a preliminary injunction filed by the North Carolina Growers Association and the American Farm Bureau Federation in their lawsuit to overturn the H-2A program regulations issued by Secretary of Labor Hilda Solis. The new regulations issued by Secretary Solis became effective March 15, 2010. The Solis regulations primarily restored labor protections and processes under the H-2A agricultural guestworker program that the Bush-Chao Administration had taken away and replaced in regulations that became effective in January 2009, just before President Obama took office.
Judge Osteen ruled that the plaintiff grower organizations had not met the standards for issuing an injunction. The Solis H-2A regulations, therefore, remain In effect. The growers argued that the regulations were arbitrary and capricious and that the concerns of small business had not been adequately considered.
The Department of Labor, represented by the Department of Justice, defended the case, arguing that the regulations were lawful and that the process by which they were issued was lawful.
The United Farm Workers, the Farm Labor Organizing Committee, AFL-CIO, PCUN (Oregon’s farmworker union), Change to Win and two dozen individual farmworkers from around the country joined the case as “Defendant-Intervenors” to support Secretary Solis’s decisions and demonstrate the harm that would result to tens of thousands of workers if the injunction were granted.
Parties can appeal the decision. This was a decision on a “preliminary” motion. The parties could still litigate, through the usual longer process, the merits of the case. However, in a case like this involving administrative agency policies, there is no trial and the court’s decision on the preliminary injunction is likely to be its decision after a fuller briefing of the case.
In many places where the H-2A program is used, the difference between the Bush-Chao wage (which often amounts to the federal minimum wage – which is $7.25 per hour – or the state minimum wage if it is higher, such as California’s $8.00 per hour) ) and the restored wage rates under the Solis regulation is about $2.00 per hour. The Solis formula, which was put into place under the Reagan Administration in 1987 is based on USDA’s Farm Labor Survey and is set for each state. During 2010, under the Solis (and Reagan) formula, the following wage rates apply under the H-2A program: Florida: $9.20 per hour; California: $10.25 per hour; North Carolina: $9.59; Washington: $10.85; New York and New England: $10.16.
“We thank Secretary Solis for her attention to farmworkers and the reinstatement of basic labor protections under the H-2A guestworker program. We are pleased that the judge ruled against the agribusiness groups that sought to perpetuate the harsh Bush-Chao policies issued in the last moments of their Administration. It’s unfortunate that tens of thousands of farmworkers at H-2A program employers suffered the impact of low wages and lost benefits during 2009,” said Bruce Goldstein, Executive Director of Farmworker Justice. “Now, the DOL must turn to vigorously enforcing the labor standards in agriculture, where violations of workers’ minimum protections are rampant,” he added.
For the farmworkers, the lead attorneys are Greg Schell of the Migrant Farmworker Justice Project of Florida Legal Services; Robert J. Willis, a private attorney who is also general counsel of the Farm Labor Organizing Committee, AFL-CIO; additional organizations representing the workers are California Rural Legal Services, Change to Win, Farmworker Justice, Georgia Legal Services, Southern Migrant Legal Services, Southern Poverty Law Center and Texas RioGrande Legal Aid.