Report of Current H-2B Court Cases- December 2015

Report of Current H-2B Court Cases- December 2015

There are currently five pending cases involving the H-2B regulations - three brought by employer groups and two by worker advocates.They involve issues of whether DOL can issue binding rules for the H-2B program, whether the Interim Final Rule published in April was validly issued, whether DHS has improperly given over its power to DOL by dropping the countervailing evidence procedure, whether employers should be allowed to use surveys or be required to pay SCA/DBA wages where they exceed the prevailing wage, and whether DOL can enforce certifications issued prior to March 2015 under the 2008 Rule.

1. InBayouII, the case that secured a permanent injunction against the 2012 program rules, the employers and the government have filed their briefs to the 11th Circuit Court of Appeals. The Court will schedule oral argument on the appeal later this year or in early 2016, looking at the issue of whether DOL has unilateral rulemaking authority over the H-2B program.

2. There is a relatively new case,BayouIII, filed in Pensacola, Florida, in which employers have challenged the April 2015 interim final program rule (IFR) and have asked the Court to block that rule and require the agencies to undergo a full notice-and-comment rulemaking on the program rule. In that case, the parties have filed their briefs with Judge Rodgers and await her decision on the merits.

3. The third case,GH Daniels III & Associates, was recently decided by the 10th Circuit court of appeals. Because DHS had abandoned its "countervailing evidence" provision - the "safety valve" that allowed employers to go directly to DHS where DOL had denied a petition for H-2B workers - the 10th Circuit ruled that the Department of Homeland Security had improperly "sub-delegated" to DOL the authority that Congress had provided to DHS. On remand to the District of Colorado, employers will track whether the court will direct DHS to reinstate the "countervailing evidence" procedure.

4. Another case, this one filed by worker advocates in federal court in New Jersey,CATA IV, seeks to strike the use of employer-provided wage surveys and to require employers to pay SCA or DBA wage rates in areas where they are higher than the prevailing wage. The parties in that case have also submitted briefs to the trial judge, and we continue to track the case for any decision or other activity.

5. InPerez v. Perez, the case in which Florida Legal Services convinced Judge Rodgers in Pensacola to invalidate the 2008 H-2B Rule, a decision that triggered the program shutdown in March 2015. Legal services went back to Judge Rodgers to clarify that DOL could continue to conduct audits and enforce the requirements of certifications issued prior to March 4, 2015 under the 2008 H-2B Rule, and Judge Rodgers granted their request for relief on September 4, 2015. The National Association of Landscape Professionals has asked to intervene in that case, and the Judge has not yet ruled on that request.

Note: Summary Prepared by Chris Schulte on behalf of the Small and Seasonal Business Legal Center