Important H-2B Guestworker Litigation Breakthrough

On April 26, Judge M. Casey Rodgers, of the Northern District Court of Florida, issued a preliminary injunction blocking the U.S. Department of Labor from implementing its new H-2B Program Rule. This Rule, which governs employers’ treatment of foreign guestworkers regulated under the H-2B visa program, would have imposed new costs, minimum work guarantees, multiple itineraries, and worker housing inspection requirements to the extent of making the program unworkable for many industries, including reforestation.

FRA Richard Lewis praised the ruling: “The Department of Labor’s new Program Rule would have been not only prohibitively expensive but logistically impossible for tree-planting contractors to comply with. The decision is a great victory not only for forestry but for all sectors using guestworkers under the H-2B program.” FRA supported the Florida lawsuit financially on behalf of FRA reforestation contractor members who use H-2B guestworkers from Mexico and Central America.

DOL’s Program Rule had been scheduled to go into effect on April 27, the day after Judge Rodgers’s decision blocked it. If anyone has evidence that DOL personnel are attempting to process H-2B applications under the 2012 rule, rather than reverting to the more workable 2008 rule, they should contact FRA’s Richard Lewis ([email protected]) or the H-2B Workforce Coalition.

The plaintiffs in Bayou Lawn & Landscape Services v. Solis were able to establish, to Judge Rodgers’s satisfaction, a substantial likelihood of success on their claim that DOL lacks authority to promulgate the new H-2B Program Rule; and that the plaintiffs would incur a substantial risk of irreparable harm if the Rule were implemented.

Both parties, DOL and the plaintiffs, have 60 days to respond to the preliminary injunction, and the judge would normally hand down a final opinion by mid-August. FRA is hopeful that this opinion will include a “permanent injunction” in favor of the plaintiffs, in view of Judge Rodgers’s clearly skeptical view of the merits of DOL’s case. DOL would then have further appeal options, but in a much less favorable legal framework.

Although this ruling does not impact the status of the new H-2B Wage Rule, which FRA and the H-2B Litigation Alliance are also contesting in Pennsylvania, the Program Rule decision augurs well for the success of overturning the Wage Rule, since the plaintiffs’ argument contesting it rests on similar grounds. Meanwhile, last December Congress temporarily blocked enforcement of the Wage Rule, through September 30, 2012.