The U.S. Supreme Court has agreed to review in its next term a case that raises the question of whether the U.S. Department of Labor (DOL) could constitutionally impose certain penalties on H-2A employers. If the Supreme Court affirms the 3rd U.S. Circuit Court of Appeals’ decision that the DOL could not, the current litigation frameworks for cases brought by the DOL’s Wage and Hour Division might be at risk, according to Leon Rodriguez, an attorney with Seyfarth in Washington, D.C., and Miami.
The H-2A program is the temporary agricultural worker classification that lets U.S. agricultural employers bring in foreign workers for temporary or seasonal work, said Amy Peck, an attorney with Jackson Lewis in Omaha, Neb., and Sioux Falls, S.D.
The DOL administers and reviews applications for temporary labor certification, while U.S. Citizenship and Immigration Services adjudicates the H-2A petition on Form I-129 after certification is obtained, she explained.
If the I-129 is approved, the worker may seek issuance of the visa through the State Department. The DOL’s Wage and Hour Division investigates and enforces H-2A obligations, including through the assessment of back wages and civil money penalties, which is the enforcement role at issue in this case (DOL v. Sun Valley Orchards), Peck said.
The DOL manages the labor certification process through the DOL Office of Foreign Labor Certification to confirm, Rodriguez said, that:
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