Six Florida companies whose H-2A applications to hire truck drivers were denied by the Labor Department may get some relief as the result of a court decision Monday.
U.S. District Judge Richard Leon in Washington, D.C., issued an injunction requiring the department (DOL) to take another look at the applications, which cover more than 100 positions, because similar applications have been approved in the past.
“It is only fair to conclude that the [companies] have had the proverbial rug yanked out from under them by the DOL' s decision not to approve their applications this year,” Leon said in his opinion.
The companies stand to lose millions of dollars if they can’t hire the drivers they need, Leon said in his opinion, quoting their court filings. Everglades Harvesting and Hauling, the lead plaintiff in the case, estimated it would lose $4.7 million over the course of this season. The 44 drivers would be hauling sugarcane from farms and fields to a processing mill.
The Labor Department denied the firms’ applications earlier this year, and a department Administrative Law Judge upheld those decisions, finding that the driving positions did not qualify as “agricultural labor or services” for purposes of the H-2A program.
But the companies argued that DOL changed the rules after they applied, through a Frequently Asked Questions document issued Oct. 23, which strictly limits its definition of “agricultural labor or services” to agricultural duties.
Since the drivers would be hauling products off the farm, they did not fit within the definition, the ALJ said.
“The fact that Congress chose to create separate [the H-2A and H-2B] programs for agricultural and non-agricultural work does not necessarily mean that Congress intended that workers in the agricultural program could not perform any other work,” Leon said in his decision.
The judge said there is “good reason to doubt the DOL's proffered (but not formally adopted) interpretation that an employer is ineligible for an H-2A [temporary labor contractor] if the employer's application includes any non-agricultural job duties. To me, at least at this admittedly preliminary stage, the better reading of the statute and its context allows for non-agricultural work to be included, so long as agricultural work predominates.”
Michael Marsh, president and CEO of the National Council of Agricultural Employers, said he did not think employers who applied after the Oct. 23 FAQ was issued would be able to use the ruling to justify applications involving non-agricultural work.
However, he did say the opinion “may have given us some good language going forward” as NCAE tries to persuade DOL to alter its interpretation of “agricultural goods or services,” which Marsh said differs from the definition in the Internal Revenue Code.
Leon “did pretty clearly indicate the [work] was farm-related,” Marsh said.
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