H-2B: Progress in Legislation, Litigation

by FOR

On June 14, the Senate Appropriations Committee voted to adopt an amendment to the 2013 Labor/Health and Human Services Appropriations Bill that would block the Department of Labor from spending funds to enforce its new H-2B Program Rule or H-2B Wage Rule through September 30, 2013. Five Democrats joined 14 Republicans in supporting the Amendment in Committee; 11 Democrats opposed it. FRA anticipates that it will pass on the Senate floor and easily prevail in the House. We would like to thank members of FRA’s National Forestry Contractors Task Group, as well as FRA Board and other national committee members, for raising the visibility of this issue in the Labor/HHS Appropriations Subcommittee and building such strong, bipartisan support for Sen. Shelby’s amendment.

Both the new Program Rule and the new Wage Rule, governing the H-2B guestworker visa program, place new costs and inflexible logistical requirements on employers of certain classes of guestworkers—significantly, reforestation workers brought in from Mexico and Central America. FRA and allies in reforestation and other sectors—hospitality, utility right-of-way clearing, landscaping, lawn-care, seafood-processing, and theme-park administration, among others—are litigating both Rules in federal court. Recent rulings have been favorable, and while appeals and other litigation proceed, this legislation should enable businesses dependent on H-2B guestworkers to continue to operate under the previous Rules.

FRA is supporting two H-2B-related lawsuits. With respect to litigation on both the Program Rule and Wage Rule in the Florida District Court, the judge has issued a “stay” on further consideration of the Program Rule pending the outcome of an appeals court ruling on whether intervenors will be allowed in the Wage Rule case. It is possible that the judge will issue a summary judgment (in our favor) following up on his previous temporary injunction on that case, but she first wants a ruling on the question of whether intervenors will be allowed in the Wage Rule case, a point which would be relevant to whether they should have been allowed in the Program Rule case.

The other case, limited to the Wage Rule, originated in a Louisiana jurisdiction but was transferred to a Philadelphia, Pennsylvania jurisdiction. FRA is among the plaintiffs. The second hearing on this case is scheduled for June 28.