FRA, Coalition Sue DOL Over H-2B Wage Rule

By: Neil Ward

For several months, we have reported on the Department of Labor’s rulemakings to establish new guidelines for regulating wages and working conditions for foreign guestworkers brought to the United States under the H-2B visa program, to work in migratory and seasonal occupations, including reforestation. With publication of the final rule governing the wage portion of the revised guidelines this summer, FRA and other coalition members exhausted options under the public comment process.

On September 7, FRA and a diverse group of co-plaintiffs working as the Joint H-2B Legal Challenge Alliance filed a lawsuit against the U.S. Department of Labor and the U.S. Department of Homeland Security in the Western District Federal Court of Louisiana. The suit seeks permanent injunctive relief from the Wage Rule. Since DOL had moved up the date of implementation of the new rule to October 1, 2011, the hearing was on a fast track and was scheduled to take place Friday, September 23, at 9:30 AM before the Honorable Dee D. Drell, Judge of that Court, in Alexandria, Louisiana.

Alleging violations of the Administrative Procedures Act, the Regulatory Flexibility Act, and of the U.S. Constitution’s Takings Clause, the suit is seeking to have the Court strike down the Rule or, at least, to move the October 1 implementation date back while it pursues other remedies. Apart from the reforestation interests FRA and co-plaintiff Louisiana Forestry Association represent, the Alliance represents interests in other sectors that have traditionally used foreign guestworkers to fill positions in seasonal work such as sugar cane processing, seasonal resorts and hospitality, crab processing, utility spraying, and landscaping, such that the conditions of employment—being seasonal and mobile—have little to attract domestic workers but fill important income gaps for foreign nationals.

The morning of September 23, FRA received notification from DOL of “a 60-day postponement” in implementing the Wage Rule, which is now to take effect on November 30, 2011, “to permit the various courts involved in ongoing litigation surrounding the implementation of the rule to determine the appropriate venue for the resolution of all claims.” DOL may have concluded that the Louisiana District is not the most favorable venue to prevail in the litigation and hopes to maneuver the case to another jurisdiction. Whatever the truth, H-2B contractors have a small reprieve from the Wage Rule’s October 1 effective date, and DOL has become aware that it will face formidable resistance. FRA, and our allies in this campaign, are determined to press this advantage.

Meanwhile, on September 22, we learned that Sen. Barbara Mikulski (D-Maryland), Sen. Mary Landrieu (D-Louisiana), and Sen. Lindsey Graham (R-South Carolina) have succeeded in including language in the Senate Appropriations bill that would prohibit the U.S. Department of Labor from enforcing the new Wage Rule. Although this legislation has not yet come to the floor for a vote, this development also sends a very strong message to DOL—especially since Sen. Mikulski is considered an important labor ally (although obviously aware of the impacts the revised Wage Rule would have on Maryland’s well-known crab processing industry).

Litigation is expensive, and will likely continue, and even if we prevail at the outset, opponents are likely to appeal or continue the fight by other means. FRA is leading the effort to raise funds from the forestry sector at all levels to support the effort, since affordable reforestation is absolutely critical to a competitive forest industry in the future. Many FRA members have already made contributions or pledges to this important campaign. If you would like to join them, please download the Pledge Form, which lists recommended donation levels, based on size or volume of business.

Neil Ward is the Director of Communication for the Forest Resources Association that represents diverse segments of the wood fiber supply chain, promoting forest products industry members' ability to compete successfully in the global marketplace.