6.30.09

A group of farmers and agricultural associations represented by national labor and employment law firm Constangy, Brooks & Smith, LLP, obtained an injunction against Secretary of Labor Hilda L. Solis on 6/29/09 regarding the H-2A nonimmigrant guest worker program, a program designed to fill labor shortages in agricultural employment.

In December 2008, during the latter days of the Bush Administration, then-Secretary of Labor Elaine L. Chao issued regulations governing the H-2A program that replaced regulations promulgated in 1987. The “Chao Rule” took effect January 17, 2009, shortly before the change in presidential administrations. Within hours of being sworn in as Chao’s successor in March 2009, Secretary Solis issued a notice of proposed rulemaking in March 2009 that would “suspend” the Chao Rule and replace it with the 1987 rule, which would have significantly and adversely affected farmers who employ H-2A workers and was likely to have reduced the use of the H-2A program. She provided only 10 days for comment and instructed the Department of Labor not to consider any comments related to the merits of the 1987 rule or the Chao Rule. Despite these restrictions, approximately 800 comments were submitted, and approximately 99 percent of those opposed the suspension.

Constangy filed suit on behalf of the farmers and associations, led by the North Carolina Growers’ Association, Inc., to enjoin the suspension on the ground that the Solis rulemaking violated the Administrative Procedure Act. The Honorable Judge William L. Osteen, Jr., of the U.S. District Court for the Middle District of North Carolina granted the plaintiffs’ Motion for Preliminary Injunction, which will “suspend the suspension.” In other words, the Chao Rule will remain in place until a trial can be held.

This ruling protects agricultural businesses that would have been negatively affected by Secretary Solis' replacement of the Chao Rule with the 1987 rule. 

Quote from Randy: This is a significant decision that prevents the agricultural industry from being “whipsawed” in the middle of the busiest time of the time for agriculture.

For expert commentary from Randy Loftis, lead plaintiffs’ attorney representing North Carolina Growers' Association, please contact Victoria Whitaker immediately at vwhitaker@constangy.com or 404-230-6730.

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