US appeals court rules Dept. of Labor has no authority to issue regulations governing H-2B guest worker program

Audrey Dixon

LOS ANGELES , April 4, 2013 (Industry Intelligence Inc.) – The U.S. Dept. of Labor has no authority to issue regulations governing the H-2B guest worker program, a U.S. appeals court ruled on April 1.

The ruling by the Court of Appeals Eleventh Circuit upholds an earlier district court ruling in Florida on a case brought by several silvicultural and tree planting businesses and other stakeholders.

Rockville, Maryland-based Forest Resources Assn. Inc. (FRA) noted in a statement Monday that the appeals court ruling was important to the contractors forestland owners depend on for reforestation.

The plaintiffs in the case—led by Bayou Lawn & Landscape Services, the U.S. Chamber of Commerce, the National Hispanic Landscape Alliance, Silvicultural Management Associates Inc., and Professional Landcare Network--had challenged some rules issued by the Dept. of Labor governing the employment of temporary, non-agricultural foreign workers.

At issue is the Dept. of Labor’s 2011 “Program Rule,” which FRA said in a statement Monday “would impose unworkable stipulations on employees using temporary guestworkers under the H-2B Visa program.”

The plaintiffs had asserted that the Dept. of Labor had no authority to issue the rules, and the U.S. District Court of the Northern District of Florida agreed, granting the plaintiffs a preliminary injunction prohibiting the enforcement of the rules, court documents show. The Dept. of Labor appealed that decision.

In Monday’s ruling, the appeals court affirmed the district court's decision that the Dept. of Labor lacks the authority to issue regulations governing the H-2B guestworker program.

The appeals court’s finding, available on its website (http://www.ca11.uscourts.gov/) states: “We conclude that plaintiffs have shown a substantial likelihood of success on the merits of their claim that DOL has exercised a rulemaking authority that it does not possess.”

According to FRA: “While DOL has not exhausted its legal options in this case, this recent ruling bodes well for our continued efforts to return the H-2B guestworker program to a reasonable structure.”

FRA said it continues to work closely with its allies to determine the full implications of the decision, and its possible impact on the related ‘Wage Rule’ case.

The primary sources of this article are an opinion published by the United States Court of Appeals Eleventh Circuit available on its website on April 1, 2013, and an e-mailed statement from Forest Resources Assn. Inc. (FRA) on April 2, 2013.

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