Federal judge blocks Biden labor protections for foreign farmworkers

A federal judge in Kentucky rejected expanded protections implemented by the Biden-Harris administration for foreign farmworkers who come to the U.S. under H-2A visas.  

On Monday, U.S. District Judge Danny Reeves granted an injunction siding with Kentucky farmers and Republican attorneys general in Kentucky, Ohio, West Virginia and Alabama who argued that the new rules constituted granting foreign farmworkers collection bargaining rights. Reeves said that Congress, not the Biden-Harris administration, would have to determine whether to allow H-2A visa-holders the right to unionize. 

Those new rules, implemented by the U.S. Department of Labor in April, expanded protections for H-2A visa-holders, including requiring employers to ensure they would not intimidate, threaten or otherwise discriminate against foreign farmworkers for "activities related to self-organization" and "concerted activities for the purpose of mutual aide or protection relating to wages of working conditions." 

"In perhaps its most blatant arrogation of authority, the Final Rule seeks to extend numerous rights to H-2A workers which they did not previously enjoy through its worker voice and empowerment provisions," Judge Reeves wrote. "The DOL justifies this attempted regulatory expansion as an effort to prevent the alleged ‘unfair treatment’ of H-2A workers by employers to protect similarly situated American workers."

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Temporary agricultural workers with H-2A work visas wait in line to cross the San Ysidro Port of Entry on their way to seasonal jobs in the United States on March 22, 2022 in Tijuana, Mexico.  (Mario Tama/Getty Images)

"The Final Rule not so sneakily creates substantive collective bargaining rights for H-2A agricultural workers through the ‘prohibitions’ it places on their employers," Reeves wrote. "Framing these provisions as mere expansions of anti-retaliation policies, the DOL attempts to grant H-2A workers substantive rights without Congressional authorization." 

Under a prior preliminary injunction issued by a federal judge in Georgia, the new rules had already been blocked in 17 states. Reeves' decision does not apply nationwide. 

Kentucky Attorney General Russell Coleman speaks during the Fancy Farm picnic in Fancy Farm, Kentucky, on Aug. 5, 2023.  (Ryan C. Hermens/Lexington Herald-Leader/Tribune News Service via Getty Images)

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Congress created the H-2A temporary agricultural visa program in 1986 through the Immigration Reform and Control Act, allowing employers to hire foreign farmworkers on a temporary, seasonal basis, when there is a shortage of U.S. workers to fill the needed positions. It includes protections for American workers, including setting a minimum wage rate for foreigners coming to work under the program. 

A barn and rock stacks outside of the Horse District of Lexington, Kentucky. (Joe Sohm/Visions of America/Universal Images Group via Getty Images)

Kentucky Attorney General Russell Coleman argued that the Biden-Harris administration rules could have caused "serious and irreversible damage to farmers who are just trying to get by and bring food to Kentucky’s dinner tables." 

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"We should be working to help Kentucky’s farmers, not put them out of business. This unlawful and unnecessary rule from the Biden-Harris Administration would have made it harder to get farmers’ products to grocery store shelves and would have increased already high prices for families," Coleman said in a statement. "We will continue to do what’s right to stand up for Kentucky’s farmers."