E-Blasts

An important victory comes out of the District Court in Washington D.C. today for the ag industry. For years, the ag industry has suffered a shortage of available commercial truck drivers and haulers to transport ag commodities from the fields to the processing facilities. During harvest, drivers and haulers are a critical component when fruit can perish within hours if not transported to cooling and processing facilities. To supplement the shortage of truck drivers and haulers, growers and labor contractors have filed for and received guest workers through the H-2A visa program.

Then, in May 2019, the DOL issued a denial for an H-2A labor contractor application for heavy and tractor-trailer truck drivers hauling produce from fields to processing and packing facilities. The DOL reasoned that hauling not performed “by a farmer or on a farm” was not agriculture. Shortly thereafter, in a parallel decision, the DOL issued a denial for an H-2A labor contractor application for truck drivers hauling from fields to the packing facilities. Here again, the DOL reasoned that because the drivers are not “in the employ of the operation of the farm” they were not engaged in agricultural labor or services.

Following this series of rapid fire decisions, the Department of Labor (DOL) released H-2A Frequently Asked Questions (FAQs) on the Definition of Agricultural Labor or Services in October. The FAQs were released without prior announcement or period of notice-and-comment. The DOL dedicated half of the FAQs exclusively to this issue of trucking and hauling, including four examples for illustrative purposes. In the FAQs, the DOL takes the position that if the employer is a labor contractor, not the owner or operation of the farm, then the truckers and haulers transporting commodities off the farm to the processing facilities are not engaged in “agriculture” and therefore not eligible for H-2A visas.

After the FAQs were published, the DOL continued to issue denials and notices of “deficiency” across the country to labor contractors who had been receiving approved H-2A applications for truckers and haulers for years prior. In response, a number of associations and labor contractors filed suit in the District Court for the District of Columbia (Everglades Harvesting and Hauling, Inc. et al. v. Scalia, case number 1:19-cv-03291-RJL). In the suit, Plaintiffs alleged that DOL violated the Administrative Procedure Act (APA), and requested a restraining order and preliminary injunction. This week, the Court granted a preliminary injunction for Plaintiffs, which stops the DOL, for the time being, from enforcing the denials and deficiency notices it issued against the Plaintiffs.

The Court reasoned that because the FAQs were released without prior announcement or a notice-and comment period, Plaintiffs relied on past H-2A approvals for their trucking and hauling needs. Further, the Court found that Plaintiffs face “certain, actual, and imminent” economic harm in the millions. Although this is not a final decision in this case, an injunction is an important step in providing relief.

COUNSEL TO MANAGEMENT:

This preliminary injunction does not apply to all labor contractors and growers that may want to file H-2A applications for trucking or hauling positions. It is important to speak with qualified counsel as to whether this preliminary injunction impacts your operations. As this lawsuit continues, check back for future E-Blasts and updates from the Saqui Law Group, a Division of Dowling Aaron, Incorporated.

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