June 28, 2024

For Immediate Release

Contact:  Michael Marsh, President and CEO

                (202) 629-9320

(Arlington, VA) Earlier today, the U.S. Supreme Court issued a landmark ruling that in the case of Loper Bright Enterprises v. Raimondo that overturns the Court’s Chevron doctrine. The National Council of Agricultural Employers (NCAE) celebrates this ruling which curtails the executive branch’s ability to subject the agricultural community to excessive, unjust government regulations.

“For the past 40 years,” stated Michael Marsh, President and CEO of NCAE, “America’s farmers and ranchers have endured federal agencies run amok. America’s agricultural employers operate every day within a dizzying web of government regulations. The H-2A temporary agricultural worker program, specifically, is one of the most heavily regulated areas of the American economy, with an ever-changing set of rules and agency interpretations, including three new regulations in the past two years, spanning everything from wages to seatbelts to what food to serve to employees. But today, the U.S. Supreme Court has restored balance to our Constitutional system and given courts back the role that the Framers intended them to have, what Alexander Hamilton called the “steady, upright and impartial administration of the laws,” independent from the political process.”

“Despite witnessing the negative impact Chevron inflicted on many industries, including agriculture,” explained Marsh, “Congress has not spoken on this subject for the past 40 years, and the courts have given federal agencies nearly limitless power to issue regulations and interpretations under the Chevron doctrine, ruling against employers’ challenges to the regulations imposed on them again and again. This broad ‘deference’ to agencies left agricultural employers caught in the middle while the political pendulum swings back and forth, with a series of Labor Secretaries enacting their own agendas.”

“The Court’s decision in Loper Bright Enterprises and Relentless has finally put an end to the ‘stacked deck’ of Chevron deference because, as Chief Justice Roberts wrote, ‘agencies have no special competence in resolving statutory ambiguities,” stated Marsh. “Courts do.”

“For the past 60 years, NCAE has advocated for the agricultural employer community including, when necessary, supporting lawsuits to challenge agency regulations. We hope that, based on the Court’s decision today, we will be able to make those challenges on a level playing field and show courts why the rules were illegal without the courts being required to defer to the agencies’ arguments under the now-dead Chevron standard.”

“This is a great result and a great day for agriculture.”

NCAE is the national trade association focusing on agricultural labor issues from the employer’s viewpoint.

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June 12, 2024

For Immediate Release

Contact:  Michael Marsh, President and CEO

                (202) 629-9320

(Arlington, VA) The National Council of Agricultural Employers (NCAE) announced today the filing of a brief of amicus curiae in support of Wonderful Nurseries’ (Wonderful) fight against California’s unjust and unsafe “card check” law.

“California’s card check law,” explained Michael Marsh, President and CEO of NCAE, “which eliminates secret ballot union elections, gives private labor unions an unprecedented ability to impose bargaining and contractual obligations on an employer without even verifying whether the actual farmworkers support the union. The removal of this most basic democratic practice and protection for farmworkers does not merely open the door wide for potential misuse, abuse and coercion by private labor unions–it takes the door off the hinges.”

Earlier in the year, and only months after Governor Newsom signed California’s card check bill into law, NCAE learned of allegations of coercion by the United Farm Workers (UFW) of vulnerable workers and potential misuse of the U.S. Department of Agriculture’s (USDA) Farm and Food Worker Relief (FFWR) Grant Program.

“Distressingly,” noted Marsh, “such an outcome was completely foreseeable. Last May, NCAE learned of and wrote to warn USDA Secretary Vilsack of reported allegations that agents of the UFW Foundation were informing farmworkers in New York, which passed the card check law that inspired California, they must first sign a UFW union authorization card to obtain their $600 FFWR payment.  Such an assertion would be dishonest.  NCAE asked the Secretary to investigate the allegations to ensure that no wrongdoing was occurring.  We have not yet been informed whether the USDA’s law enforcement arms, the Office of Inspector General or the U.S. Department of Justice, has initiated an investigation into the farmworker’s allegations.  Maybe there’s no there, there, but an investigation would certainly answer a lot of questions.”

In the Court filing, NCAE explains that the card check law is bad policy, unconstitutional in the private sector, and damaging to the constitutional rights of farmworkers as well as employers. You can view a copy of NCAE’s filing here.

“NCAE supports Wonderful’s fight against this perplexing card check law,” stated Marsh. “America’s farmers and ranchers are already struggling to keep operations running under the worst agricultural economy in generations without themselves and their workers being harassed by private labor unions.”

NCAE is the national trade association focusing on agricultural labor issues from the employer’s viewpoint.

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June 11, 2024

For Immediate Release

Contact:  Michael Marsh, President and CEO

                (202) 629-9320

(Arlington, VA) The Southeastern Legal Foundation (SLF) announced its representation of a coalition of agricultural employers and States in their fight against the Department of Labor’s (Department) disturbing new regulation that will force agricultural employers to allow potentially malign actors access to their business. The National Council of Agricultural Employers (NCAE) applauds this critical step necessary to protect the rights of America’s farmers and ranchers.

“This offensive regulation,” explained Michael Marsh, President and CEO of NCAE, “was developed in utter bad faith and in conflict with Congress and the Constitution of the United States. This regulation never should have been allowed to see the light of day, let alone be published as a Rule. NCAE commends the SLF’s efforts to stop this regulation from inflicting lasting and devastating harm on America’s farmers and ranchers.”

During the New Deal, Congress gave some employees the right to form labor unions through the National Labor Relations Act (NLRA). The NLRA explicitly excluded farm workers from the right to form unions and has continued to do so for nearly 90 years. This has prevented extortive labor strikes that would cripple farms and ranches and jeopardize national security.  Further, Congress instructed the National Labor Relations Board (NLRB) to use the expansive definition of “agriculture” provided by the Fair Labor Standards Act (FLSA) in determining whether workers fall under the category of agricultural laborers.

Now, in direct conflict with Congress’ exclusion, the Department has taken it upon itself to create that right.

“Rather than abiding by the laws passed by Congress or petitioning Congress to legislate the changes only it can make,” commented Marsh, “the Department decided to flout the Separation of Powers inherent to our American way of governance. The Department should know this is something they cannot do.”

“As a result of the Department’s overreach, agricultural employers are suffocating under a 3,000-page mountain of regulatory text that the Department and other regulatory agencies involved in agricultural labor have piled on America’s farmers and ranchers in the last few months,” said Marsh. “This troubling trend of regulatory overreach must reverse if the American public wishes to enjoy food produced by American farmers and ranchers on American soil. We are hopeful SLF’s efforts will be a strong step towards turning that tide so America’s farmers and ranchers can get back to doing what they do best: feeding America and the world.”

NCAE is the national trade association focusing on agricultural labor issues from the employer’s viewpoint.

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May 22, 2024

For Immediate Release

Contact:  Michael Marsh, President and CEO

                (202) 629-9320

(Arlington, VA) The National Council of Agricultural Employers (NCAE) is pleased to announce a special listening session to explore and enhance educational opportunities for migrant farmworkers and their families.   

“American agricultural employers know,” said Michael Marsh, NCAE President and CEO, “that their workers are unique individuals with aspirations, goals, and incredible ambitions. Moreover, employers want to support those workers so they can achieve their goals. We hope to bolster employer resources so that they may better facilitate their workers in achieving those dreams.”  

This listening session will be led by Jessica Castañeda, Coordinator of the Identification and Recruitment Consortium (IDRC). IDRC focuses on programming and efforts to support the educational success for migrant students and their families and is funded through the Department of Education. Educational opportunities available include basic math and English skills, financial literacy skills, assistance preparing for and obtaining a GED, and many other educational resources. Attendees are encouraged to ask questions, share their experience, and engage in discussion about what educational needs exist in the agricultural community for farmworkers.

“We encourage employers to take advantage of this opportunity to help us brainstorm ways to better connect resources with farmworkers,” stated Marsh.

The session will begin at 2:30 pm ET/11:30 am PT on Wednesday, June 5, 2024.  

Registration for this important listening session is available at ncaeonline.org.  

NCAE is the national trade association focusing on agricultural labor issues from the employer’s viewpoint.

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May 17, 2024

For Immediate Release

Contact:  Michael Marsh, President and CEO

                (202) 629-9320

(Arlington, VA) The National Council of Agricultural Employers (NCAE) is pleased to announce the next installment of its educational webinar series, “Detangling the Department of Labor’s ‘Farmworker Protection’ Rule,” which will focus on the takeaways employers need to know about the Department’s recently published rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” 

“Frankly this rule,” said Michael Marsh, NCAE President and CEO, “was developed in bad faith and should be withdrawn immediately. Despite the injustice and the Department’s myopic perspective in publishing the rule, America’s farmers and ranchers cannot wait to start planning how to contend with this damaging regulation. This webinar will offer attendees valuable insights into how they can remain in compliance.”

This interactive webinar will be led by Chris Schulte, a Partner in the Litigation Practice and Labor & Employment Group of Smith, Gambrell & Russell, LLP.  Chris will review the key changes and updates related to the rule about which employers should be aware. Attendees at this webinar will learn critical information about how this new rule will impact their operations. Attendees will engage in an interactive Q & A about the rule and are encouraged to submit questions about the rule ahead of time.   

The webinar will begin at 3:00 pm ET/12:00 pm PT on Tuesday, May 21, 2024.  Participants will be eligible to receive one Professional Development Credit from the Society for Human Resource Management upon completion of the webinar.

Registration for this important webinar is available at ncaeonline.org.  Marsh noted, “Our webinars are extremely popular and typically fill up very quickly. Please register as soon as possible to ensure you secure your spot in this important discussion.”

NCAE is the national trade association focusing on agricultural labor issues from the employer’s viewpoint.

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May 17, 2024

For Immediate Release

Contact:  Michael Marsh, President and CEO

                (202) 629-9320

(Arlington, VA) Michael Marsh, President and CEO of the National Council of Agricultural Employers (NCAE), was recently invited to join a delegation coordinated by the U.S. Agency for International Development (USAID) and the Guatemalan Ministry of Labor and Social Welfare to participate in a panel discussion in Guatemala City, Guatemala, on “Legal Labor Pathways” for agricultural jobs in the United States. For many years, NCAE has engaged with Ministries of Labor for the countries of Northern Central America—Guatemala, El Salvador, and Honduras. This marks NCAE’s latest effort to engage with USAID and other partners in compliance to strengthen the partnerships between American farmers and ranchers and our “Labor Neighbors” in this region.

Above: Michael Marsh speaking with a translator for the Guatemalan Minister of Labor, Miriam Roquel Chávez

“This was an incredible opportunity to witness the transformational power of the H-2A Temporary Agricultural Worker Program and the great work in which USAID engaged to strengthen the H-2A program first-hand,” noted Marsh.  This event coincided with the third Los Angeles Declaration Ministerial with foreign ministers and senior representatives from 21 endorsing countries. During this event, USAID announced plans to launch a new labor mobility initiative, “Alianza de Movilidad Laboral para las Américas” or “Labor Neighbors,” to increase access to circular migration pathways.

In addition to participating in the panel discussion, Marsh and other attendees observed interviews and interactions with prospective H-2A workers from Guatemala. “These are truly outstanding individuals—some of them descendants of Mayan warriors—with aspirations for a better life for themselves and their families,” explained Marsh.

“The H-2A program is a golden ticket to these prospective workers,” noted Marsh. “During the interviews, workers noted that by picking apples on a 90-day contract in the Pacific Northwest, they could earn more than they would in Guatemala in 5 years. During the interview process, prospective workers shared that they had dreams—one stated he plans to build a home upon return and hopes to someday add a wood floor, another shared he wanted to grow coffee, and another hoped to start a business and open a small bodega at the end of his contract.  To these workers, their families, and communities, being selected for an H-2A contract in the U.S. means they can achieve dreams.”

Above: Michael Marsh and other panelists speak with a grower in Guatemala.

“We applaud the efforts of USAID to enhance the legal, circular migration pathways like the H-2A program. USAID’s efforts are among the best our Nation has to stem the flow of illegal migration. The Agency is connecting eager, strong, and well qualified individuals with American farmers and ranchers who are in desperate need of labor.”

“Unfortunately,” continued Marsh, “their best efforts are undermined by challenging and conflicting regulations which further increase the cost and complicate an already expensive and convoluted program. One such regulation is the Department of Labor’s recently published final rule, ‘Improving Protections for Workers in Temporary Agricultural Employment in the United States,’ which presupposes that farmers and ranchers are inherently bad actors. Unlike USAID, which engages agricultural employers as true partners in compliance, in just the last 18 months, the Department of Labor along with other federal agencies have waged a regulatory assault against agricultural employers, issuing an astounding 3,000 pages of new regulations with which farmers and ranchers must familiarize themselves and adjust business processes while maintaining operations”.

NCAE is the national trade association focusing on agricultural labor issues from the employer’s viewpoint.

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April 26, 2024

For Immediate Release

Contact:  Michael Marsh, President and CEO

                (202) 629-9320

(Arlington, VA) Earlier today, the Department of Labor (Department) published 600 pages of new regulations ironically titled, “Improving Protections for Workers in Temporary Agriculture Employment in the United States.” This Rule and the Administration’s promulgation of the rule reflects its disdain for the U.S. Supreme Court, the U. S. Congress, and all who engage in American agriculture.

“This offensive Rule was developed in complete bad faith and should be immediately withdrawn.  This regulation should never have been allowed to see the light of day.  To suggest this regulation somehow protects farmworkers is a bad joke and its punchline is its lasting damage to farmworkers and the American farm and ranch families who employ them,” said Michael Marsh, President and CEO of NCAE. “The Department here seeks to make an undisguised end run around the Congress, the Supreme Court and the Constitution of the United States of America.”

In this Rule, the Department blatantly thumbs its nose at the U.S. Supreme Court’s June 2021 decision in Cedar Point, et al, v. Haddid, et al, and implies that the Executive Branch under Article II of the Constitution can simply override and ignore rulings of the Judicial Branch under Article III. In Cedar Point, the Court found in a 6-3 decision that a regulation providing union activist’s access to farms and ranches was an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments.  The Court struck that regulation down, but the Department’s action here reveals its complete disgust for the rule of law.

This rule puts workers, who had enjoyed a brief respite from organizers’ constant coercion, threats, harassment, misrepresentation, deceit, and bullying, at further jeopardy from union activists. Farmworkers were thrilled by the Court’s protective action in Cedar Point, believing they would no longer be subject to the abuse of union representatives at their place of work.  This new rule casts aside this most critical worker protection and again makes farmworkers vulnerable to deceitful union organizing tactics to which we and our employees object.

Shockingly, under this new rule, the Department asserts that unionization of H-2A Temporary Agricultural workers is not preempted by the laws passed by Congress. This unequivocally contradicts the Congress’ specific exclusion of agricultural laborers under the National Labor Relations Act of 1935 (NLRA). Further, Congress instructed the National Labor Relations Board (NLRB) to use the expansive definition of “agriculture” provided by the Fair Labor Standards Act (FLSA) in determining whether workers fall under the category of agricultural laborers.

“Rather than accepting the interpretation of law by the Supreme Court, abiding by the laws passed by the Congress, or petitioning Congress to legislate change only it can make, the Department decided it can ignore the Separation of Powers inherent to our liberty, and fill all branches of our government,” explained Marsh. “This is something the Department should know it cannot do.”

Throughout this regulatory process the Department has used demoralizing, pejorative language to cast shade falsely and disrespectfully at farmers and ranchers who are forced to use the H-2A program for workers who are ready, willing, and available, to help us plant, nurture, and harvest crops that feed America. This vitriolic tenor began with the announcement and Notice of Proposed Rulemaking. The Department again disregarded the pleas of America’s farm and ranch families when they denied employers’ requests to extend the comment period so that they could adequately express their concerns about this convoluted regulation.

NCAE works with members and the government agencies themselves to advance compliance with more than just the H-2A regulations. Our members regularly study cases and law related to the FLSA, the Migrant and Seasonal Agricultural Worker Protection Act, and rules promulgated by the Occupational Safety and Health Administration. In fact, NCAE members and their Human Resource teams annually spend hundreds of hours becoming educated on agricultural employment law and best practices to maintain compliance.  They do this at significant expense to their operations.

NCAE members do this because it is the right thing to do.

The Department’s own data indicates that unfortunately some employers do not follow the lead of NCAE’s members. Their own data indicates that 5% of agricultural employers account for 95% of the violations uncovered in investigations. This rule ignores that reality. Rather than engage constructively with employers who are eager to make the H-2A program work well and safely to reduce violations further, the Department chose to treat all agricultural employers as malicious actors, demoralizing the farm and ranch families who work each day to ensure Americans have food on the table.

“American farmers and ranchers grow and produce the safest, most sustainable food in the world. If the portion of the American public who eats, wishes to find food produced by American families,” explained Marsh, “the incessant barrage of deleterious and crushing regulations targeting agricultural employers must stop.  The Acting Secretary should withdraw this regulation, squalid in its bad faith, immediately.”

NCAE is the national trade association focusing on agricultural labor issues from the employer’s viewpoint.

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March 20, 2024

For Immediate Release

Contact:  Michael Marsh, President and CEO

                (202) 629-9320

(Arlington, VA) It is with great frustration and dismay that the National Council of Agricultural Employers (NCAE) learns once again about allegations of the United Farm Workers (UFW) coercion of vulnerable workers and misuse of the U.S. Department of Agriculture’s (USDA) Farm and Food Worker Relief (FFWR) Grant Program. This time the allegations arise from California.

The FFWR program, which began in March 2023, provided one tribal entity and 14 non-profit organizations—including the UFW Foundation—roughly $670 million to issue relief payments of $600 to farmworkers to help defray expenses they incurred preparing for, preventing exposure to, and responding to the COVID-19 pandemic.

Last May, NCAE wrote to the USDA to warn Secretary Vilsack that agents of the UFW Foundation were reportedly informing farmworkers in New York that they must first sign a UFW union authorization card to obtain their FFWR $600 payment. By coercing workers into signing union cards to receive those funds, these workers now must pay the union 3% of their wages in dues.

“At the time, NCAE shared our concerns with USDA that UFW Foundation agents were targeting New York farmworkers specifically because of a new card check law that allows a union to become the authorized bargaining representative with 51% of the workforce signing a union authorization card. The New York legislature had abandoned the farmworker protections inherent in a secret ballot union election, exposing New York farmworkers to UFW shenanigans,” shared Michael Marsh, President and CEO of NCAE. “We stressed that if UFW Foundation or their agents are misleading farmworkers by claiming it is a requirement to sign a union authorization card before UFW Foundation does what it is required to as a grantee under the FFWR program, that is clearly a misuse of Federal funds and should be referred to the Office of the Inspector General to investigate.”

The USDA replied that they would conduct additional training to prevent this type of abuse.

Frustratingly, any additional training that may have occurred has not changed the UFW’s deceitful practices. The allegations we now hear from farmworkers in California are nearly identical to those we shared with USDA 10 months ago.

Once again, UFW organizers are reportedly targeting farmworkers in California—a state with a new card check law.

Once again, farmworkers have expressed, now with 148 written declarations, that they were tricked, lied to, and coerced by UFW organizers into signing a union card to receive the $600 relief payment for which they were eligible.

Once again, NCAE is asking Secretary Vilsack and the USDA’s Office of Inspector General to investigate these repeated, extremely public allegations of misuse of federal grant funds.

“The purpose of the FFWR grant was to help farmworkers with pandemic-related health and safety costs, not to pad the pockets of UFW. USDA entrusted UFW Foundation with almost $98 million in funding to issue FFWR payments to farmworkers. Up to 10% of that award can be retained by the organization for administrative costs,” said Marsh. “It is Secretary Vilsack’s duty to ensure those remaining funds reach workers regardless of their union affiliation and without being tricked into joining the UFW.”

NCAE is the national trade association focusing on agricultural labor issues from the employer’s viewpoint.

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