Blog by: Samuel Larrabee
With deportation efforts underway, many criticisms have been raised regarding how President Trump’s executive orders might affect the agriculture industry.[i] It is no secret that a large portion of farm workers in the United States are unauthorized. In 2022, the United States Department of Agriculture put the number of unauthorized crop farmworkers at 42% of the total workforce.[ii] The Center for Migration Studies estimates that the number of unauthorized agriculture workers is around 283,000; however, this number is highly variable and is likely much larger due to workers not wanting to self-report their status as unauthorized.[iii] The significant portion of these workers come from Mexico and about half are working in California.[iv] The wisdom of President Trump’s deportation policy is debatable, but what is certain is that over a quarter of a million people in the United States should not be left in a legal limbo, simultaneously performing critical labor and risking deportation at any moment.
The H-2A temporary agricultural program, more commonly known as the H-2A visa program, was created in 1986 to bridge the gap between the needs of farm owners and those who would otherwise be undocumented farm laborers.[v] Around 310,000 H-2A visas were granted in 2023, giving legal status to an essential labor force.[vi] If a program already exists to supplement a sparse domestic labor force, then why is it not being widely touted as a solution to a potentially departing undocumented workforce? There are two main reasons, the first is general administrative burden and the length of time it takes to process visa applications.[vii] The second is abuse of foreign workers in the program, especially when it comes to pay and the ability of workers to advocate for themselves.[viii] It is the second issue that recent federal regulations sought to fix – regulations that were held to violate separate law.[ix]
In April 2024, the Department of Labor (DOL) issued a regulation entitled “Improving Protections for Workers in Temporary Agricultural Employment in the United States” which, among other things, sought to grant these workers something akin to collective bargaining rights, the ability to bring guests into their employee granted housing, and the right to have their wages recalculated to be as high as possible.[x] Even though the court in the Eastern District of Kentucky found that the DOL had the statutory authority to enact these regulations, the court found each of these three specific regulations either violated a separate law or were arbitrary and capricious.[xi]
The part of the rule which “requires employers to provide assurances that they will not intimidate, threaten, or otherwise discriminate against certain workers… for engaging in ‘activities related to self-organization,’ including ‘concerted activities for the purpose of mutual aid or protection relating to wages or working conditions’,” is one which could yield reforming results.[xii] This provision, more than any other in the final rule, has the potential to truly transform the protections of temporary agriculture workers and give them more ability to speak up for themselves. But this specific rule is particularly contentious.
Two district courts have separately found that the rule violates the National Labor Relations Act’s (NLRA) prohibition against granting collective bargaining rights to agriculture workers.[xiii] The NLRA grants employees the right “to self-organization, to form, join, or assist labor organizations, to bargain collectively…, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” but the Act explicitly excludes agriculture workers from its definition of “employee.”[xiv] The Eastern District of Kentucky court writes that “[u]nder the APA, agencies must have unambiguous permission from Congress in cases where their actions contravene another law.”[xv] The DOL argues that these provisions do not grant collective bargaining rights but instead are “merely an expansion of the H-2A program's existing anti-discrimination provisions”[xvi] The Kentucky court, however, does not adopt this interpretation and instead analyzes the language of the NLRA and the DOL’s regulation and finds that “the Final Rule not so sneakily creates substantive collective bargaining rights for H-2A agricultural workers through the ‘prohibitions’ it places on their employers.”[xvii]
The question of whether placing prohibitions on employers amounts to granting substantive rights to employees is certainly open for debate. Both the Kentucky district court and the Georgia district court held that the final rule was within the DOL’s rulemaking authority, so the NLRA is the only bar to enforcement. An alternative resolution to that question could immediately result in improved protections for H-2A workers.[xviii] While the DOL could potentially adjust the wording of their final rule, it is hard to imagine any prohibitions on employer’s conduct that, no matter how they were constructed, would not be interpreted by the court as a substantive right granted to employees. Alternatively, at least one district court disagreed with the Kentucky and Georgia courts and found that the regulations did exceed the DOL’s statutory grant of authority without reaching the issue of preclusion by the NLRA. This means even if the DOL did find a wordsmith’s workaround, the courts would likely still stand in the way.[xix]
Because of the court’s role, at least when it comes to any sort of bargaining rights and other protective provisions the district court invalidated, reform will likely require Congress. Congress could alter the language of the NLRA to include agriculture workers in the definition of employees; however this might have unintended consequences in an important economic sector beyond simple protections for H-2A workers. A more plausible course of action is for Congress to amend 8 USC § 1188, the section governing the H-2A visa program, to affirmatively grant the protections described in the DOL’s final rule.
If the H-2A visa program is to be a valid solution to the departure of an undocumented immigrant labor force, the program must be reformed. Further, if the Department of Labor’s reform attempts are blocked by the courts, Congress must step in and pick up the slack.
[i] Nancy Chen & Emily Pandise, How Trump's plan to deport undocumented immigrants threatens the workforce for U.S. farm workforce, CBS News (Jan. 25, 2025), https://www.cbsnews.com/news/trump-deportation-plan-effects-undocumented-farmers/ [https://perma.cc/2MG7-CMAF].
[ii] Farm Labor, Econ. Rsch. Serv. (Jan. 8, 2025), https://www.ers.usda.gov/topics/farm-economy/farm-labor [https://perma.cc/3689-GMVS].
[iii] Raquel Rosenbloom, A Profile of Undocumented Agricultural Workers in the United States, Ctr. for Migration Stud. (Aug. 30, 2022), https://cmsny.org/agricultural-workers-rosenbloom-083022/ [https://perma.cc/EN3M-BZ8G].
[iv] Id.
[v] Sadikshya Nepal, Primer: Evolution of the H-2A Visa Program, Bipartisan Pol’y Ctr. (Sep. 15, 2021) https://bipartisanpolicy.org/explainer/primer-h2a-visa/ [https://perma.cc/C5NX-N7CA].
[vi] Econ. Rsch. Serv., supra note ii.
[vii] H-2A Visa Program: Agencies Should Take Additional Steps to Improve Oversight and Enforcement, U.S. Gov’t Accountability Off. (Nov. 14, 2024), https://www.gao.gov/products/gao-25-106389 [https://perma.cc/Z77X-VL5K].
[viii] Id.
[ix] Barton v. United States Dep't of Lab., No. CV 5:24-249-DCR, 2024 WL 4886048 (E.D. Ky. Nov. 25, 2024) at *10.
[x] Improving Protections for Workers in Temporary Agricultural Employment in the United States, 89 Fed. Reg. 33898-01 (Apr. 29, 2024) (to be codified at 20 C.F.R. pts. 651, 653, 655, 658).
[xi] Barton, No. CV 5:24-249-DCR, 2024 WL 4886048 (E.D. Ky. Nov. 25, 2024) at *2
[xii] Id. at *8.
[xiii] Id.; Kansas v. United States Dep't of Lab., No. 2:24-CV-76, 2024 WL 3938839 (S.D. Ga. Aug. 26, 2024) at *7.
[xiv] 42 U.S.C. §§ 152, 157.
[xv] Barton, No. CV 5:24-249-DCR, 2024 WL 4886048 (E.D. Ky. Nov. 25, 2024) at *9.
[xvi] Id. at *10.
[xvii] Id. at *12.
[xviii] Id. at *8; Kansas, No. 2:24-CV-76, 2024 WL 3938839 (S.D. Ga. Aug. 26, 2024) at *7.
[xix] Int'l Fresh Produce Ass'n v. United States Dep't of Lab., No. 1:24-CV-309-HSO-BWR, 2024 WL 4886058 (S.D. Miss. Nov. 25, 2024) at *9.