ARLINGTON, VA. — The National Council of Agricultural Employers (NCAE) filed a lawsuit against the Department of Labor’s (DOL) final rule targeted to protect temporary workers under H-2A visas. The lawsuit, also signed by several agricultural associations and individual farmers, was filed with the US District Court for the Eastern District of Kentucky.

NCAE claims in its complaint that the DOL’s “Improving Protections for Workers in Temporary Agricultural Employment in the United States” rule is unlawful and unconstitutional.

According to the group, the rule imposes new “illogical” duties on farmers that jeopardize the safety of their farmworkers by allowing temporary foreign agricultural workers to unionize — a right not extended to American farmworkers.

In late August, the US District Court for the Southern District of Georgia issued a preliminary injunction in Kansas, et al. vs. US Department of Labor, halting the rule from becoming effective in the 17 states involved in the case. Farming operations in the two-thirds of the states not covered by the lawsuit are still accountable to the provisions in the rule.

“Through this final rule, the DOL seeks to create law by affording some agricultural workers — H-2A workers and American workers similarly situated — the right to collectively bargain,” wrote US District Judge Lisa Godbey Wood in her ruling to issue a preliminary injunction. “Congress has not created that right. And in fact, the NLRA reflects Congressional intent to not create such a right.”

The DOL issued a statement on its website to say it plans to begin processing applications from employers not covered by the injunction in accordance with its final rule on Sept. 12. The department added it would process applications for employers covered by the injunction in accordance with the regulations that were in effect prior, thereby creating a new multiple-application process.

“Rather than taking heed of the judge’s wise words and withdraw the rule in its entirety, the department decided to further complicate matters for farm and ranch families by creating a bifurcated application process at the whim of the acting secretary’s pen rather than through true notice-and-comment rulemaking,” said Michael Marsh, NCAE president and chief executive officer. “This is something the acting secretary and her department know they cannot do.”