On June 20, the U.S. Department of Labor announced it would suspend enforcement of a Biden-era regulation that imposed unreasonable and unconstitutional burdens on H-2A temporary agricultural visa program users.

The rule titled Improving Protections for Workers in Temporary Agricultural Employment in the United States was finalized in June 2024 over strong objections of the H-2A employer community. Among many problematic features, it sought to create through regulatory action a right to protected concerted action by employees in the workplace (a key concept in the federal National Labor Relations Act) that does not exist in agricultural employment since Congress did not include agriculture in the NLRA; required access for union organizers to employers’ property in contravention of the U.S. Supreme Court’s 2021 Cedar Point Nursery v. Hassid decision striking down California’s employer property union access regulation; required implementation of progressive discipline procedures and higher standards for termination that do not apply to private employment elsewhere; required disclosure of workers’ wages and working to third parties (including worker activists and labor unions) and required extensive disclosure of personal and business information about employers participating in the H-2A program.

The regulation had been enjoined in whole or in part in litigation in three separate federal circuit courts, creating problems for the Department to uniformly enforce the regulation for H-2A employers and employees across the U.S.

FELS parent organization, California Farm Bureau, had urged the Department to cease its legal defense of this Biden-era rule and settle lawsuits against by agreeing to it’s total withdrawal. Suspension of enforcement leaves the regulation in place to be picked up by future presidential Secretary of Labor, continuing the whipsaw of inconsistent administration of the H-2A program, and making its use unpredictable and making business continuity planning difficult for users.

You can read the Department of Labor’s announcement of enforcement suspension here.