Feb 6, 2025

H-2A labor rule challenge raises questions in federal courts 

A growing H-2A labor rule challenge is advancing through the courts as agricultural employers and industry groups continue to push back against the Department of Labor’s (DOL) “Worker Protection” rule. The case, brought by the National Council of Agricultural Employers (NCAE) and others, argues that the regulation is unlawful, unconstitutional and unfairly disadvantages growers operating outside of states already under injunction.

On November 4, a federal district court judge in Lexington, Kentucky, heard arguments from NCAE and co-plaintiffs seeking to expand an earlier injunction issued in Georgia that blocked the rule in 17 states. The plaintiffs content that if the rule was deemed illegal in those states, it should also be invalid nationwide.

“The U.S. Constitution’s protection of the rights of all Americans does not stop at state lines,” NCAE stated.

Court takes issue with DOL enforcement

A North Carolina grower testified about the serious impacts of the rule, explaining that his operation’s cost had increased significantly and that neighboring farms in South Carolina — where the injunction applied — held an unfair market advantage.

The grower also drew attention to a controversial provision requiring all passengers in employer-provided transportation to wear seatbelts at all times. The rule’s strict liability clause would hold employers legally responsible if any worker failed to comply, regardless of fault.

“The judge appeared distressed,” wrote Michael Marsh, NCAE president and CEO, describing the reaction in court.

Another witness, an NCAE executive committee member, testified that the rule’s new filing requirements had multiplied costs for employers operating across multiple states. “What had historically required the filing of just one petition in an area of intended employment now required multiple filings,” the witness said.

On cross-examination, a Department of Justice (DOJ) attorney representing DOL argued that the changes were merely “incremental adjustments.” The court, however, was not convinced.

Growers cite confusion across state lines

A Kentucky grower testified next, describing how the DOL rule complicated compliance for farms operating in multiple states. Because his orchards straddle the Kentucky-Virginia border, the same group of workers faced two different sets of labor rules depending on which state they worked in.

He told the court that DOL’s enforcement “changed only because he crossed a state line,” prompting the judge to question whether this was the “incremental” change the agency claimed.

NCAE outlines legal and constitutional concerns

As the final witness, NCAE detailed its broader objections to the Worker Protection rule and to the way DOL implemented it. “We told the court about meeting with DOL and indicating that the rule should have never seen the light of day,” Marsh said.

NCAE argued that the executive branch had overstepped its authority under the National Labor Relations Act, and that DOL’s position conflicted with a 2021 Supreme Court decision that found a regulation granting access to farms violated the Fifth and Fourteenth Amendments.

During cross-examination, the DOJ attorney’s questions allowed NCAE to reinforce its case. “We placed into the record again all the rest of the frailties of the new rule,” Marsh wrote. “We shared that if DOL had wanted our opinion on the ‘fix’ for the injunction, we would have gladly shared our thoughts because that ‘notice and comment’ is required by law.”

NCAE also questioned how much deference the agency should receive following the Supreme Court’s recent overruling of Chevron deference, which had long guided judicial review of agency interpretations.

“The DOJ attorney seemed stunned,” Marsh wrote. “And that was before the judge started asking questions of him.”

New ruling halts enforcement nationwide

Just weeks later, the H-2A labor rule challenge gained new momentum when, on November 25, a federal district court in Mississippi ruled that DOL lacked the authority to issue key parts of the April 2024 regulations. The court’s ruling stayed enforcement of those provisions nationwide.

Among the most controversial elements were those requiring agricultural employers to allow temporary foreign farmworkers to unionize — a mandate that critics argued went far beyond DOL’s statutory authority.

“The judge appeared distressed as to how to proceed as DOL had not given him many options,” Marsh said.

The Mississippi decision marks another step in a broader legal effort by grower groups to rein in federal overreach and clarify labor rules affecting farm operations across the country. The H-2A labor rule challenge remains ongoing as courts continue to examine the balance between worker protections and grower rights.

— Michael Marsh has led the National Council of Agricultural Employers since 2017. A Wyoming native and certified public accountant, Marsh worked for a CPA firm with farm and ranch clients investigating fraud. He was director of finance for the Almond Board of California for 7 years and for 15 years was CEO of the largest U.S. dairy producer trade association.