On June 9, 2009, several agricultural growth and trade associations that employ immigrant workers under the H-2A or H-2B nonimmigrant visa programs filed a class action lawsuit in the Middle District Court of North Carolina under the Administrative Procedure Act and the Fair Labor Standards Act against the U.S. Department of Homeland Security and U.S. Department of Labor ("DOL"). The plaintiffs, represented by private counsel, sought injunctive relief, declaratory relief, and attorneys' fees and costs, claiming that the defendants' proposed "Solis Final Rule" is arbitrary and has significant deficiencies, such as opening agricultural growers to significant liability and requiring growers to give different wages and work conditions to H-2A workers on short notice and without an adequate public comment period.

Before the promulgation of the "Chao Rule," the H-2A nonimmigrant visa program was plagued with severe administrative and processing issues, such as long delays, but was the only viable legal route to obtaining certain immigrant workers. Then, in January 2009, after months of working on solving many of the issues associated with the H-2A program and receiving comments from the public, the DOL promulgated the "Chao Rule." As a result of this rule, the H-2A program was streamlined, the calculation of wages and required expenses were clarified, and workers were given more rights. Employers also did not have to pay for the moving expense during the first week of work, which the growers pushed for. It also included in the H-2A program guest workers in the logging industry and agricultural packing house operations and excluded such workers from certain FLSA regulations. These workers used to have to apply under the H-2B program which, unlike the H-2A program which has no caps, had longer application wait times since the caps for the whole year were generally filled by March.

In March 2009, Hilda Solis was sworn in as Secretary of Labor and proposed the "Solis Final Rule" to replace the "Chao Rule." The "Solis Rule" would potentially allow workers to sue their employers for FLSA violations that occurred from January 2009 to March 2009 even though they were legal and not violations under the "Chao Rule." The plaintiffs alleged that DOL promulgated a new rule without a reasonable public comment period and in the middle of the growing season. Further, they alleged that the DOL's reasoning behind replacing the "Chao Rule" with the "Solis Rule" was flawed and would significantly harm the farming business.

On July 1, 2009, the District Court (Judge William Lindsay Osteen, Jr.) granted the plaintiffs' motion for a preliminary injunction due to the relatively slight amount of harm the defendants will suffer from not being able to implement the new "Solis Rule" and the likelihood of plaintiffs' success on the merits. On August 4, 2009 , the defendants appealed this ruling to the Fourth Circuit. On October 14, 2009, the District Court (Judge Osteen) denied the defendants' motion to stay the case until their appeal is decided, and on November 19, 2009, the Fourth Circuit (Judge Paul Victor Niemeyer, Judge Dennis W. Shedd, and Judge J. Harvey Wilkinson III) likewise denied the defendants' motion to stay the district court case. While the appeal was pending, on December 3, 2009, the District Court (Judge Osteen, Jr.) allowed other farm organizations and individuals to intervene as defendants. On March 30, 2010, the Fourth Circuit (Judge Niemeyer, Judge Shedd, and Judge Wilkinson) dismissed the defendants' appeal.

The parties went through discovery and on October 4, 2011, the District Court (Judge William Lindsay Osteen, Jr.): denied the plaintiffs' motion for summary judgment against the federal defendants; granted the plaintiffs' motion for summary judgment against the defendant-intervenors; permanently enjoined implementation of the new "Solis Rule;" and dismissed the defendant-intervenors' claims. On November 1, 2011, the defendant-intervenors filed a notice of appeal but on December 21, 2012 the Fourth Circuit (Judge Albert Diaz, Judge Barbara Milano Kennan, and Judge J. Harvey Wilkinson III) affirmed the District Court's grant of summary judgment to the plaintiffs.

The District Court retained jurisdiction for the bill of costs and on January 17, 2013 charged defendants $384.74 to be paid to the plaintiffs.

Perry Miska - 03/16/2014


compress summary