On April 29, 2024, the United States Department of Labor (DOL) published a final rule titled, “Improving Protections for Workers in Temporary Agricultural Employment in the United States” (“the Final Rule” or “the Rule”).[1] Originally scheduled to become effective June 28, 2024, the Final Rule amended DOL’s regulations governing their part in the H-2A visa program.[2] The DOL is responsible for the certification of temporary employment of migrant farm workers and the enforcement of the contractual obligations applicable to their employers.[3] One of the most salient features of the Rule grants migrant farm workers employed under the program the right to engage in “concerted activity” to ensure that H2-A employers are abiding by the minimum labor standards set by DOL and to do so without employer retaliation.[4]

The H2-A program, as delineated by the Immigration and Nationality Act and amended by the Immigration Reform and Control Act of 1986 (IRCA), grants DOL authority to issue a certification indicating that (1) there are not enough citizen agricultural laborers available to fulfill an employer’s need and (2) that the issuance of a visa to migrant workers will not adversely affect similarly employed citizen laborers.[5] DOL justified the Rule under the second prong, reasoning the agency is not equipped to inspect every employer’s operation; migrant farm workers are often the targets of mistreatment, labor standard violations, and retaliation; and, due to employers’ increasing reliance on H2-A visa holders for agricultural labor, citizen farm workers working alongside them are likely to experience similar abuse.[6]

Seventeen Republican-led states, a Georgia berry farm, and the Georgia Fruit and Vegetable Growers Association challenged the Final Rule.[7] The states sought a nationwide preliminary injunction, arguing that (1) DOL exceeded their authority under IRCA, (2) the Rule violates the National Labor Relations Act of 1935, specifically the exclusion of agricultural laborers from the definition of “employee” which deprives them of the right to organize, and (3) the Rule violates the Major Questions Doctrine.[8]

Judge Lisa G. Wood of the Southern District of Georgia granted the preliminary injunction but limited it to the parties in the case.[9] “Exercising its independent judgment,” as required post-Loper Bright,[10] the Court held that DOL did not exceed its authority under IRCA but that the Rule was unconstitutional because of its conflict with NLRA. As of October 23, both parties have filed competing Motions for Summary Judgment, employing many of the same arguments.[11]

Assuming that Judge Wood was correct that DOL’s Rule is contravened by the NLRA, perennial questions surface: How did we get here? Why are agricultural workers not “employees?” What is the justification for this exclusion which prevents farm workers from “concerted activity” or collective bargaining? The answers are hidden in plain sight.

Industrial agriculture in the United States has always relied on low or no cost, unprotected labor.

Beginning in the early seventeenth century, indentured servants from Europe were guaranteed passage across the Atlantic in exchange for their labor.[12] Shortly thereafter began the brutal system of chattel slavery that sustained the emergent American economy, supplying the world with cheap cotton, tobacco, and sugar.[13] With the dismantling of the chattel slavery system—not without a fight from landowners and states reliant upon the free labor—it was replaced by tenant-sharecropping.[14] Beginning in the late nineteenth century, low-paid, unprotected workers of Chinese, Japanese, and Filipino descent comprised much of the Western states’ farm workers, that is until the Chinese Exclusion Act of 1882 banned the employment of Chinese immigrants.[15] During World War I, a shortage of labor and slowing European immigration compelled companies and the government to encourage Mexican laborers to enter the country as farm workers, only to be deported when the Great Depression hit.[16]

During the Great Depression, Congress passed the National Labor Relations Act of 1935 that protected employees’ freedom of association and collective bargaining but excluded farm workers from the definition of “employee.”[17] Three years later, the Fair Labor Standards Act of 1938 set minimum wage and maximum hour rules but, again, excluded farm workers.[18] These exclusions may have been rationalized as an effort to maintain sufficient agricultural production during the lean years of the Depression. Yet cheap, unprotected labor has always been—if in an unspoken manner—deemed necessary to sustain high production profits and artificially low consumer food costs. That may be underscored by the fact that the exclusions of farm workers from basic labor standards remain intact nearly 100 years later.[19]

Following the Depression, World War II brought a renewed labor shortage.[20] Once again, Mexican laborers were recruited to fill the void in agricultural fields.[21] The H2-A visa program was first established by the Immigration and Nationality Act of 1952 to formalize the immigration system and monitor these migrant workers.[22] The program was amended by IRCA in 1986.[23] Today, most farm workers are immigrants from Latin America, an estimated 60% of whom are undocumented, with many others receiving visas through the H2-A program.[24] The number of farm workers receiving H2-A visas quadrupled over the last decade.[25] Meanwhile, in recent inspections, the Department of Labor found compliance violations at 88% of H2-A employer operations, including human trafficking, hundreds of dollars in unpaid wages per worker, and other forms of labor exploitation.[26] Due to their vulnerable status, migrant farm workers are unlikely to report abuses or seek help.[27] Many have referred to the conditions as “modern-day slavery,” including federal prosecutors in instances in which extreme violations have been discovered.[28]

The DOL included all of this as part of their justification for promulgating the Rule now being contested by many of the very states and farm owners that profit from the current injustices.[29] The challenge fits neatly into the long history of such struggles to maintain an undercompensated and unprotected agricultural workforce. When improvements are proposed, states and farm owners often push back, citing a lack of available workers as the justification for maintaining such an unjust system.[30] Many farm workers and advocates say that this is exactly backwards; if farm workers were provided the compensation and protections enjoyed by other industries, the work would be more attractive to citizen and migrant workers alike.[31]

As they say, there is nothing new under the sun. That is particularly true for vulnerable farm workers laboring in the fields of American industrial agriculture. Perhaps Judge Wood is correct that the states and farm owners are likely to prevail in the pending challenge. But, if that is the case, is that the result we want? How long and in how many different forms will we as a nation allow industrial agriculture to sustain itself in such a violent and unjust way?

 

 

[1] Improving Protections for Workers in Temporary Agricultural Employment in the United States, 89 Fed. Reg. 33898 (Apr. 29, 2024) (to be codified at 29 C.F.R. pt. 501).

[2] Id. at 33898.

[3] Id.

[4] Id. at 33901.

[5] 8 U.S.C. § 1188(a).

[6] 89 Fed. Reg. at 33900.

[7] Kansas v. U.S. Dep’t of Labor, No. 2:24-cv-00076-LGW-BWC (S.D. Ga. Aug. 26, 2024) (order granting preliminary injunction).

[8] Id. at 12.

[9] Id. at 37.

[10] Id. at 12 n.5.

[11] Kansas v. U.S. Dep’t of Labor, No. 2:24-cv-00076-LGW-BWC (S.D. Ga. Oct. 2, 2024) (Plaintiff’s motion for summary judgment); Kansas v. U.S. Dep’t of Labor, No. 2:24-cv-00076-LGW-BWC (S.D. Ga. Oct. 23, 2024) (Defendant’s opposition and cross-motion for summary judgment).

[12] Timeline of Agricultural Labor in the U.S., Nat’l Farm Worker Ministry (last visited Oct. 31, 2024), https://nfwm.org/farm-workers/farm-worker-issues/slider-test/ [hereinafter Timeline].

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] 29 U.S.C. § 152(3).

[18] 29 U.S.C. § 213(b)(12).

[19] 29 U.S.C. §§ 152(3), 213(b)(12).

[20] Timeline, supra note 12.

[21] Id.

[22] Id.

[23] Vernon M. Briggs, Jr., History of Guestworker Programs: Lessons from the Past and Warnings for the Future, Ctr. for Immigr. Stud. (Mar. 1, 2004), https://cis.org/Report/History-Guestworker-Programs.

[24] Timeline, supra note 12.

[25] Andrea Hsu & Ximena Bustillo, America’s Farms are Desperate for Labor. Foreign Workers Bring Relief and Controversy, NPR (Jul. 27, 2023, 5:19 AM), https://www.npr.org/2023/07/27/1187682674/farm-workers-guest-workers-h-2a-visa-agricultural-harvest-farm-labor.

[26] 89 Fed. Reg at 33988-90.

[27] Id.

[28] 24 Charged with Forcing Migrants into ‘Modern Day Slavery’, AP News (Dec. 10, 2021, 3:15 PM), https://apnews.com/article/business-georgia-slavery-forced-labor-migrant-workers-0e0d7235e79a4e216307e007a7aa716b#.

[29] Id.

[30] Hsu & Bustillo, supra note 25.

[31] Timeline, supra note 12.