March 10, 2015

Following Court Decision, DOL Shuts Down H-2B Program

In a stunning move following a federal court decision, the U.S. Department of Labor (DOL) has announced that it will no longer accept or process applications for workers under the H-2B program, effectively shutting down the program. 

According to a story published by Reuters, the decision issued on March 4th by U.S. District Judge Casey Rodgers (Northern District of Florida, Pensacola Division) ruled that the DOL did not have the “authority to enforce H-2B regulations.”  The USDOL responded, in seemingly retaliatory fashion, with its own decision to suspend accepting and processing of applications, placing the entire program in limbo. 

The H-2B program has been embroiled in a lengthy battle between the DOL and industry/business groups reliant on the program to provide seasonal, non–agricultural workers. The decision was prompted by a case (Perez v. Perez, No. 3:14-cv-682) brought by a busboy in Jupiter, Florida, Gabriel Perez, who claimed he was financially disadvantaged by the program, alleging that it allowed other workers to earn more money working similar positons that were never advertised publicly.

The Reuters story indicated plaintiffs hoped that the decision would require the government to issue new regulations that would protect workers.  While the court ruled that DOL lacked authority to issue unilateral rules, the court did not order DOL to suspend processing labor certifications which the agency has routinely done as a consultant service for the Department of Homeland Security for over 40 years without a rulemaking.

Food processing operations, as well as many seasonal businesses, rely on the H-2B program to fill temporary vacancies. The suspension will have devastating economic consequences on thousands of employers, their American employees, businesses that supply goods or services to seasonal businesses and local communities across the country. Western Growers urges DOL to immediately resume processing H-2B prevailing wage determinations and labor certifications. Watch for updates and developments on this story in future editions of Spotlight.