A federal court in Kentucky on November 25 issued a preliminary injunction that halts the U.S. Department of Labor’s implementation of its so-called “Worker Protection” regulation that would have forced farms to allow access to temporary foreign agricultural (H-2A) workers for union organizers, among many other things.

In an earlier case brought in Georgia by Southeastern Legal Foundation on behalf of Georgia Fruit and Vegetable Association, Miles Berry Farm, and a coalition of 17 states, resulted in a more limited injunction applying to those states and plaintiffs.

The May 2024 issue of FELS Newsletter reported on Acting Labor Secretary Julie Su’s appearance in Sebastopol to announce the rule, USDOL Finalizes H-2A Program Rule.

The Kentucky case, brought by the National Council of Agricultural Employers and the Workers and Farmers Labor Association on behalf of their members, effectively enjoins the rule for their members, who represent about 90% of H-2A users nationwide.

Also enjoined by the Kentucky court ruling was a requirement for program users to adopt piece-rate pay if doing so would result in higher compensation for H-2A employees, a requirement to state traffic safety laws that would have forced H-2A employers to verify that employees utilize seat belts in employer-provided transportation, a requirement for H-2A employers to collect and disclose to USDOL (where it would likely be subject to Freedom of Information Act disclosure) detailed personal information about employees and their own personal information and business structures.

The Kentucky decision effectively hamstrings DOL enforcement of its rule, leaving uncertainty as to whether the Department will try to enforce its rule or scrap it entirely.