Category: Regulatory

National Council of Agricultural Employers Spearheads Agricultural Coalition in Filing Supreme Court Amicus Brief with Southeastern Legal Foundation to Defend Farmers Against Bureaucratic Overreach

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National Council of Agricultural Employers Spearheads Agricultural Coalition in Filing Supreme Court Amicus Brief with Southeastern Legal Foundation to Defend Farmers Against Bureaucratic Overreach

Today, the National Council of Agricultural Employers (NCAE), in partnership with the Southeastern Legal Foundation (SLF), filed an amicus brief in Department of Labor v. Sun Valley Orchards, LLC. NCAE organized a robust coalition of national and state agricultural organizations to join the filing before the U.S. Supreme Court, challenging an enforcement system that threatens the constitutional rights of agricultural employers across the country.

The case stems from enforcement actions taken by the U.S. Department of Labor against Sun Valley Orchards, a family-owned New Jersey farm that utilized the federal H-2A agricultural worker program. Following an investigation, the Department assessed approximately $550,000 in back wages and civil penalties. Rather than pursuing those penalties in an independent court, the Department adjudicated the case through its own in-house tribunal system.

NCAE President & CEO John Hollay said, “NCAE is grateful for the partnership with Southeastern Legal Foundation and a robust group of agricultural organizations from across the country in filing this amicus brief in support of Sun Valley and the rights of producers everywhere. The Supreme Court has the opportunity, and we believe the responsibility, to ensure that no farmer has to face the consequences which Sun Valley has faced in the fight to protect their basic constitutional rights.”

SLF President Kim Hermann said, “Farming is the backbone of the American economy. These hard workers face some of the most grueling and challenging physical labor just to provide the groceries that we all purchase with ease. Why a government agency would choose to make life harder for these people and impose truly ruinous fines is completely beyond me. We cannot take their hard work for granted, and that’s why we must fight to make sure the government isn’t making their lives harder by enforcing random fines.” 

Led by NCAE’s initiative to protect producers, the amicus brief argues that Congress never authorized the Department of Labor to create and operate its own courts for adjudicating disputes involving H-2A employers. The brief contends that while Congress authorized the Secretary of Labor to impose penalties and seek equitable relief when necessary to ensure compliance with the H-2A program, it did not establish agency courts, hearing procedures, review mechanisms, or the broader enforcement structure that now exists through agency regulation.

The coalition further argues that the Department’s interpretation would effectively allow the agency to act as rulemaker, prosecutor, judge, and collector of penalties, concentrating extraordinary power within a single agency. The brief maintains that if Congress intended to create such a system, it was required to do so explicitly.

The outcome of the case will affect agricultural employers nationwide who rely on the H-2A program to address labor shortages and sustain domestic food production. At issue is whether employers facing substantial government penalties are entitled to have those penalties adjudicated before an independent judge and jury, or whether federal agencies may instead resolve such disputes through internal administrative courts.

The amici joining the brief are:

  • AmericanHort
  • California Farm Bureau Federation
  • Florida Farm Bureau Federation
  • Florida Fruit & Vegetable Association
  • Georgia Fruit and Vegetable Growers Association
  • Idaho Dairymen’s Association
  • International Fresh Produce Association
  • National Association of Landscape Professionals
  • National Council of Agricultural Employers (NCAE)
  • National Onion Association
  • National Potato Council
  • New York State Horticultural Society
  • New York State Vegetable Growers Association
  • North Carolina Growers Association
  • North Carolina Sweetpotato Commission
  • Texas Citrus Mutual
  • Texas International Produce Association
  • Texas Vegetable Association
  • Washington State Dairy Federation
  • Western Growers Association

Together, these organizations represent producers, growers, farmers, ranchers, landscapers, and agricultural employers across the United States. The coalition joined the brief because its members believe the Department of Labor must administer the H-2A program within statutory and constitutional limits while preserving the due process rights of agricultural employers.

About NCAE

Founded in 1964, NCAE is the only national association focusing exclusively on agricultural labor issues from the agricultural employer’s viewpoint.

About SLF

Southeastern Legal Foundation is a national, nonprofit legal organization dedicated to defending liberty and Rebuilding the American Republic®. Since 1976, SLF has gone to court for the American people when the government overreaches and violates constitutional rights.

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DOL’s Modernizing Recruitment for H-2A Workers

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Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United States – November 9, 2019

The Department of Labor has (finally) acknowledged what agricultural employers have been telling them for years – potential U.S. workers are not coming forward in response to print newspaper advertising for available agricultural jobs, and that advertising is costly to employers.

In a Notice of Proposed Rulemaking (NOPR) published today, the Department has opened a 30-day comment period on a proposal to replace expensive newspaper advertising (online or print) entirely with a website-based advertising system – with employers given discretion to choose “at least one website that is widely used and appropriate for use by U.S. workers who are likely to apply for the job opportunity in the area of intended employment.”

Employers seeking to hire H-2A workers will post their jobs to their state workforce agency and then to the Chicago National Processing Center, and then post the job order to the website of their choosing – retaining proof of posting. The job must remain posted on the website for at least 14 consecutive days. No further advertising by employers will be required.

Although the NOPR references the additional duty to contact, in writing, prior-year U.S. workers who completed the season, the NOPR does not replace that requirement with the online job posting. Employers may wish to comment on that issue during the upcoming 30-day comment period, ending December 10, 2018.

For jobs with start dates between now and October 1, 2019, employers will have the choice of online posting or the traditional two newspaper advertisement option.

“This is great news and a good start to a needed reform process for the H-2A visa. NCAE’s advocacy early in the Trump Administration has begun to bear fruit,” noted Michael Marsh, NCAE’s President and CEO. “In fact, timing of the notice dovetails nicely with our planned deep dive into H-2A reform scheduled for our Labor Forum later this month.”

“We are pleased with the Administration’s effort in this regard and look forward to the unveiling of additional reforms,” said Marsh.

Agency Information Collection Activities; Proposed Revision of a Currently Approved Collection; Request for Comments; H-2A Temporary Agricultural Labor Certification Program Form – October 25, 2018

Trump Administration’s NPRM Announcement

| Regulatory

NCAE applauds the Trump Administration’s announcement on July 15th of its Notice of Proposed Rulemaking (NPRM) to modernize and improve the H-2A temporary agricultural labor certification program.

According to the Department of Labor’s announcement, “These proposed changes would modernize the Department’s H-2A regulations in a way that is responsive to stakeholder concerns and enhances employer access to a legal source of agricultural labor, while maintaining the program’s protections for the U.S. workforce and enhancing enforcement against fraud and abuse.”

“We are very pleased the Administration has agreed to roll out this much needed modernization effort for the H-2A program. It is obvious, based upon the 489 pages included, the deep dive that was done by the agencies in their effort to evolve the program to one more responsive to the needs of stakeholders,” said Michael Marsh, President and CEO of NCAE.

According to the Department, the wide-ranging rulemaking will streamline the application process and strengthen protections for U.S. and foreign workers. The rule also looks to update methodologies used to determine Adverse Effect Wage Rates while addressing many other issues.

Marsh noted, “The breadth of this proposed rule is substantial. NCAE will be working with its committees, members and legal counsel to develop targeted, cogent comments to provide to the Department. This type of hefty rulemaking doesn’t come around often. Our sleeves are rolled up and we’re raring to go!”.