Attorney General Ken Paxton, joined by a group of state attorneys general, has sued the Biden administration’s Department of Labor over a new regulation that Paxton claims gives foreign nationals working in America more rights than American citizens.
The Department of Labor (DOL) issued the new rule in April under the Immigration and Nationality Act.
The rule, titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States,” ensures that workers under the H-2A visa program “must be paid special rates of pay that vary by locality, must be provided with safe and clean housing and safe transportation from that housing to the job site if their employment requires them to be away from their residence overnight, and must be guaranteed employment for a total number of hours equal to at least 75% of the work period specified in the contract.”
Additionally, the new regulation allows the H-2A workers to unionize — a provision that Paxton says directly violates the law.
“This rule directly violates federal law including the National Labor Relations Act of 1935 which allowed workers in certain industries to engage in trade unions and collective bargaining but exempted the agricultural industry,” according to a press release from Paxton’s office. “The Biden Administration is now attempting to use the agency rulemaking process to grant rights to foreign nationals not offered to American citizens by privileging aliens in the country on the H-2A guestworker visa program with special treatment.”
In the lawsuit filed against the DOL, the suing attorneys general claim that H-2A workers are “given greater protections than their American counterparts,” and that American agricultural workers are not eligible for the same protections that H-2A workers will receive under the new regulation.
“Joe Biden is using his bureaucratic machinery to favor immigrants who are in the country on temporary visas by unilaterally granting them rights that are not enjoyed by American citizens working in the same industry,” Paxton said in the press release. “By favoring foreign labor over American workers, Biden is not only breaking the law but turning his back on his own citizens.”
In addition to the coalition of attorneys general, Miles Berry Farm and the Georgia Fruit and Vegetable Growers Association (GFVGA) have joined the lawsuit. Miles Berry Farm employs around 150 H-2A workers per year and provides housing and transportation for those workers. GFVGA is a trade organization for fruit and vegetable farmers in Georgia that includes 175 to 200 member organizations, a handful of which participate in the H-2A program.
Both Miles Berry Farm and GFVGA oppose the new rule, saying in the lawsuit that they do not want to hire H-2A workers under the new rule, and would not do so if they had the choice.
A multitude of advocacy groups have expressed approval of the regulation, according to the Labor Department.
“Other workers’ rights advocacy organizations also expressed support for the proposed provision, stating that farmworkers are very concerned about retaliation for taking concerted action to organize and enforce their rights, that retaliation against workers is very common, and that such tactics both violate workers’ freedom of association and reduce the ability of authorities to enforce labor laws,” the DOL said in the final ruling of the regulation.
“Several advocacy organizations commented that these additional proposed protections are important to address the intimidation that farmworkers routinely face and to equip them with agency to advocate regarding their working conditions. Many individual commenters expressed support for strengthening workers’ rights to advocate and unionize, with one adding that such activity can help protect them from unjust firing and retaliation.”
Adopting the changes would also enhance transparency regarding job opportunities in foreign worker recruitment, per the DOL.
The new regulation is scheduled to take effect on June 28.