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NRCA supports injunction blocking H-2B regulation

NRCA applauds an April 26 decision by a federal judge in Florida to issue a 60-day nationwide preliminary injunction blocking a regulation that imposes burdensome new requirements on employers who use the H-2B guest worker program. The regulation was issued by the Department of Labor (DOL) in February and had just taken effect April 23.

NRCA, working with the H-2B Workforce Coalition, filed comments in 2011 opposing the regulation because the new requirements on employers virtually would eliminate the option of using the H-2B program for roofing contractors.

The preliminary injunction comes in a lawsuit brought by a coalition of associations and companies challenging the new rule. During the 60-day injunction period, the litigants will argue whether DOL should be permanently enjoined from enforcing the regulation. As such, the April 23 effective date has been postponed indefinitely, and it is anticipated the regulation will remain blocked at least through this fall and possibly permanently.

This case has potentially far-reaching effects because the lawsuit challenges DOL's authority under the Immigration and Nationality Act to specifically regulate the H-2B temporary worker category and more generally to change the scope and terms of a visa category where DOL is acting in an advisory capacity to the Department of Homeland Security. The judge found DOL had not shown it has rulemaking authority under the statute to issue broad, programmatic rules governing the H-2B visa category. Therefore, a final ruling against DOL in this case also likely will affect the outcome of another lawsuit challenging yet another new regulation governing wage rules in the H-2B program.

Although DOL may appeal this decision, NRCA is aware attorneys involved with the case indicate the ruling is so strongly in favor of the plaintiffs that DOL may not appeal.

This is good news for employers who use the H-2B program. More broadly, this is the second time in as many weeks that a court has overturned regulations issued by DOL or a related agency (the other being a recent court ruling nullifying the National Labor Relations Board’s employee rights poster regulation).

4/30/2012  

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