The Department of Labor’s Office of Foreign Labor Certification (OFLC) issued guidance on November 27, 2024, regarding its response to recent court orders impacting the 2024 Farmworker Protection Final Rule. The Farmworker Protection Rule, which ostensibly aimed to improve protections for H-2A temporary agricultural workers, has faced multiple legal challenges since its publication in April 2024.
Court-Ordered Restrictions on Implementation
Two preliminary injunctions and a nationwide stay have restricted the enforcement of specific provisions of the rule:
- Eastern District of Kentucky (Barton v. DOL):
On November 25, 2024, the court enjoined the Department from enforcing provisions related to safety requirements, worker empowerment and guest policies, information collection, and updated minimum pay. This injunction applies to Kentucky, Alabama, Ohio, and West Virginia, as well as several plaintiffs and their member organizations, including the National Council of Agricultural Employers, of which Western Growers is a member, and Western Growers members.
- Southern District of Mississippi (IFPA v. DOL):
A stay was issued the same day, staying the nationwide implementation of specific worker empowerment provisions (§ 655.135(h)(2) and (m)) pending the resolution of the case.
- Ongoing Kansas v. DOL Injunction:
As previously announced, a preliminary injunction issued in August 2024 prohibits enforcement of the rule in 17 states and against certain plaintiffs.
OFLC Guidance for H-2A Applications
To comply with these orders, OFLC announced that employers must revert to submitting H-2A job orders and Applications for Temporary Employment Certification using forms and standards effective as of June 27, 2024. This guidance applies until further notice. Employers can access the required forms through the Foreign Labor Application Gateway (FLAG) system.
Next Steps
The Department of Labor has stated that additional guidance will be forthcoming. Employers navigating H-2A compliance should monitor updates closely.
For questions about how these developments may impact your operations, please contact the Western Growers H-2A Services team. Our experts are available to assist with navigating these complex regulatory changes.