A U.S. District Judge has issued a 17-state injunction against a Labor Department regulation that would have allowed farmworkers on H-2A visas to unionize. This decision, however, is specifically limited to the states and plaintiffs involved in the suit, as the court did not find it appropriate to implement a nationwide injunction. The injunction does not apply in states Western Growers members typically operate.

However, late on August 28, the Office of Foreign Labor Certification announced that “[f]or now, [OFLC] will delay updating its FLAG system to implement revised H-2A job order and application forms associated with the Farmworker Protection Rule, originally scheduled to begin at 7:00 p.m. Eastern Daylight Time on August 28, 2024, until further notice.”

In her Order, Judge Lisa Wood ruled that the Department of Labor overstepped its authority by permitting H-2A guestworkers to engage in self-organization and to invite external parties, including legal service providers and labor organizations, into their employer-provided housing. She clarified that “Administrative agencies, including the DOL, cannot create law, and the DOL cannot create rights that Congress has not. The DOL cannot make both executive rules and congressional laws.”

The lawsuit was brought by the Southeastern Legal Foundation on behalf of the Georgia Fruit and Vegetable Association, Miles Berry Farm and a coalition of 17 states –Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas and Virginia.

Western Growers will continue to closely monitor the Labor Department’s response to this ruling and next steps.