On Friday, the North Carolina Farm Bureau and two of its farmer members filed suit against the United States Department of Labor in the federal district court for the Eastern District of North Carolina.

I write both hurriedly and (hopefully) succinctly to offer my own insights on why this effort is both one the entire agricultural community in North Carolina should applaud and to offer brief commentary on where we can hope things may go from here.

The Rule at Issue

If one were to read only the name DOL gave the rule at the center of the lawsuit, "Improving Protections for Workers in Temporary Agricultural Employment in the United States," they might understandably be confused as to why it would be doomed by at least one federal judge just two months after its issuance. The devil is in the details though, and the details here are relatively simple to understand.

In short, DOL released a rule in late June that would force farms to allow H2A workers to unionize. What's gob smacking about that is that domestic, full time (or part time, for that matter) farm workers are exempt from National Labor Relations Act laws that govern unionization.

So the result orchestrated by DOL gives foreign, temporary workers collective bargaining rights that Congress has not even chosen to extend to domestic farm workers.

In explaining how it could pull such a rabbit from its hat, DOL pointed to statutory authority in IRCA (the Immigration Reform and Control Act), and argued that it provided the agency with adequate authority to adopt rules that allow H2A workers to unionize.

Litigation Begins

Our friends at the Georgia Fruit and Vegetable Growers Association, including Miles Berry Farm and a coalition of seventeen states, sued DOL in federal court in Georgia to challenge the rule, and were successful in obtaining an injunction against DOL in late August.

In her opinion issuing the injunction, Judge Lisa Wood wrote:

"The Court finds no evidence of federal Congressional intent to create a right to collective bargaining for agricultural workers. The Final Rule does just that. The Court therefore finds that the Final Rule exceeds the DOL's constitutional authority because it creates a right. This is not in "accordance with law" as required by the APA. ... Administrative agencies, including the DOL, cannot create law, and the DOL cannot create rights that Congress has not. The DOL cannot make both executive rules and congressional laws."

In other words, DOL cannot create a right of unionization where Congress has specifically chosen to avoid doing so.

Unfortunately, the relief available as a result of the injunction inures only to those who were plaintiffs in the suit. Several State Attorneys General served as plaintiffs in the suit, and thus H2A program users in their states are covered by the Georgia injunction. The North Carolina Attorney General did not participate, and thus North Carolina is, at least for now, still subject to the DOL rule.

Instead of recognizing the folly of their regulatory overreach (in light of the Georgia court ruling), DOL proceeded to quickly establish a two-tier H2A program application system for farmers across the United States. Those who live in states covered by the injunction will recruit and retain workers with the protection of the injunction, while those outside those jurisdictions, like those of us here in North Carolina, will still be subject to the DOL rule as written.

Enter NC Farm Bureau

In an effort to obtain relief on par with that afforded to farmers in the seventeen states covered by the Georgia Court's ruling, the North Carolina Farm Bureau's lawsuit seeks an injunction and appears to be aligned with the same arguments that were largely successful in the Georgia case.

In terms of where things may go from here, I would assess the situation as "win now, or lose now and win later." It is quite possible that Farm Bureau will be successful in obtaining an injunction against DOL similar to that issued in the Georgia case. However, it is also possible that the judge handling the North Carolina Farm Bureau case will disagree with his or her colleague in Georgia and come to a different conclusion. While this would mean that North Carolina H2A users would remain subject to the new DOL rule, it would also create something akin to the kind of "circuit split" that might warrant appeals to higher courts, potentially even capturing the attention of the United States Supreme Court.

H2A users in North Carolina are incredibly fortunate that Farm Bureau and two of their members have entered the fray. We look forward to following the case, and we cannot help but share that we are grateful for Farm Bureau's leadership on this matter and many others over the years.

We also learned late on Monday that a separate coalition of farmers and farmer associations (including NC Chamber member NC Growers Association) have filed suit against DOL in federal court in Kentucky. We will analyze this separate proceeding and update you further on developments there in the coming days and weeks.

Ray Starling is the general counsel for the NC Chamber. Reach him at [email protected].