N.C. Farm Bureau files lawsuit, challenges unionization rights for temporary workers

The North Carolina Farm Bureau and two North Carolina farmers recently filed a lawsuit against the U.S. Department of Labor over regulation allowing temporary farm workers, H-2A workers, to unionize. 

In April, the DOL issued a rule strengthening labor protections for temporary farm workers by allowing them to unionize. The ruling took effect in late June. Nathan Leys, staff attorney from FarmSTAND, said the H-2A's history of exploitation incentivized the DOL's ruling. 

H-2A visas are a part of a program which allows U.S. employers to bring foreign nationals to the country to fill temporary agriculture jobs. Jake Parker, secretary and general counsel of the N.C. Farm Bureau, said temporary workers are meant to work in the United States during the growing season and are required to return to their home countries once harvest is complete.

Leys said temporary workers are vulnerable to exploitation because of their limited English language proficiency and their dependency on employers for housing, transportation, food and medical care. The DOL implemented the union rule to prevent exploitation of temporary workers.

The lawsuit targets the section of the regulation that grants temporary workers on H-2A visas unionization and collective bargaining rights, Parker said.

He said unionization and collective bargaining grant employees the opportunity to advocate for themselves and take actions in their best interest.

UNC School of Law professor Jeffrey Hirsch said the N.C. Farm Bureau might not like that they may not be able to fire workers who are advocating for better working conditions.

Although the ruling grants temporary workers unionization rights, Parker said it will be difficult to exercise them because workers cannot strike during harvest, as it directly affects their wages.

Parker said the main concern regarding the ruling is its inconsistency with domestic farm workers' rights outlined in the National Labor Relations Act. The NLRA, a federal statute that formally protects private-sector employees' unionization rights, exempts domestic farm workers from its scope. 

Leys said there are four ongoing lawsuits in four states challenging this rule: North Carolina, Georgia, Kentucky and Mississippi. 

“The [N.C. Farm Bureau] and a couple of farmers basically allege that a very small portion of the final rule is unlawful, and that they want to fight down the entire rule, and there are a couple problems with that,” Leys said. 

Leys said that one of the portions of the final rule that the bureau has deemed unlawful is legal. He added that the bureau does not provide a justifiable reason to hinder the entire rule rather than blocking only the provisions they deem unlawful.  

The NLRA exempts domestic farm workers because the legislation was enacted in the 1930s, and to get it passed, President Franklin D. Roosevelt had to make compromises with Southern Democrats, who were still the party of the Confederacy at that point, Leys said. He said the Democrats did not want agricultural industries to extend unionization rights to Black farm workers. 

Hirsch said the rule challenges the DOL's power to grant privileges to temporary workers outside the bounds of the NLRA and outside the bounds of what Congress intended by excluding domestic farm workers from the NLRA. 

“In our view, the United States Department of Labor was, by regulation, giving farm workers self-organizing rights that Congress had said they aren't entitled to,” Parker said. 

Parker said the lawsuit argues that Congress has the sole power to address the inclusion of domestic farm workers in the NLRA's regulation. He said the bureau is concerned with the DOL making decisions beyond its constitutional power, rather than acting as a regulatory agency. 

Hirsch also said states have the ability to provide protection to domestic farm workers beyond the NLRA's jurisdiction. Parker said North Carolina has no provisions explicitly granting domestic farm workers the right to join and organize unions, whereas other states like California have enacted state laws providing farm workers with such rights. Both approaches are lawful under NLRA. 

“I think we're going to build a society and an agricultural economy and rural communities in which everyone can thrive,” Leys said.

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