Kentucky Judge Blocks Biden Protections Which Would Have Given Foreign Farmworkers the Right to Unionize

U.S. District Judge Danny Reeves has blocked the Biden administration's effort to expand protections for farmworkers on H-2A visas, limiting the ruling to four states: Kentucky, Ohio, West Virginia and Alabama.

The U.S. Department of Labor had originally finalized the rules to give temporary farmworkers additional legal protections against employer retaliation, unsafe working conditions and illegal recruitment practices.

The plaintiffs, led by Kentucky farmers and Republican attorneys generals from the impacted states, claimed the DOL regulations would allow temporary farmworkers to unionize, a right typically reserved for U.S. workers under the National Labor Relations Act.

Reeves sided with plaintiffs, concluding that the rules rephrase the National Labor Relations Act to extend American workers' right to unionize to foreign H-2A workers, a change that he said would require action by Congress.

"The Final Rule not so sneakily creates substantive collective bargaining rights for H-2A agricultural workers through the 'prohibitions' it places on their employers," Reeves wrote in the ruling as reported by Kentucky Lantern. "Framing these provisions as mere expansions of anti-retaliation policies, the DOL attempts to grant H-2A workers substantive rights without Congressional authorization."

Upon the ruling, Kentucky Attorney General Russell Coleman called the Biden administration's rules "unlawful and unnecessary," warning they would increase costs for farmers and consumers and that the regulations imposed undue burdens on farmers, potentially disrupting food supply chains.

While Reeves declined to issue a nationwide block, the injunction applies to the states and parties involved in the case. A similar federal ruling in Georgia back in August had already halted the rules in 17 other states, all Republican, creating a patchwork of enforcement across the country.

Back then, U.S. District Judge Lisa Wood said that the U.S. Department of Labor rule was invalid because Congress explicitly excluded farmworkers from such protections when it granted them to other private-sector workers in the National Labor Relations Act.

The Labor Department issued nearly 300,000 H-2A visas in fiscal year 2022, up from fewer than 60,000 a decade earlier.