April 27, 2012

On February 21, 2012, the Secretary of Labor issued a Final Rule (“Rule”) that seeks to overhaul the temporary, non-agricultural foreign worker H-2B program for seasonal workers. Although the Rule was originally scheduled to take effect on April 23, 2012, the Department of Labor (DOL) extended that date to April 27, 2012. Late in the day on April 26, 2012, a Federal District Court Judge in the Northern District of Florida issued a nationwide preliminary injunction barring the DOL from implementing the rule. Click here for a link to the Order. On behalf of the litigants, who include the U.S. Chamber of Commerce and representatives from the landscape and forestry industries, Greenberg Traurig challenged the Rule in federal court and has obtained the preliminary injunction to block implementation while the Court considers the merits of the plaintiffs’ case. The Court first found that the plaintiffs (both individual companies and associations) had pleaded sufficient facts to demonstrate their standing to bring this challenge. The Court concluded that the plaintiffs had demonstrated a substantial likelihood of success on the merits. The Court concluded that the threatened injury outweighed any damage an injunction would cause the DOL especially since the DOL did not articulate any harm that it would suffer as a result of any delay in the implementation of the rules. The Court did not believe it was adverse to the public interest to enjoin enforcement of the rules while the Court determined whether DOL was authorized to issue those rules. The Court has now ordered the parties to file motions for summary judgment on June 25, 2012, and has allowed 14 days for response briefs. Economists, including those in the federal government {i.e., the Small Business Administration’s Office of Advocacy (“SBA”)}, have determined that the Rule would dramatically increase costs to small businesses. Plaintiffs believe that the underlying Rule is inconsistent with and not authorized by the enabling legislation (the Immigration and Nationality Act), violates the Administrative Procedure Act, 5 U.S.C. § 706, and violates the Small Business Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. Plaintiffs have also challenged the Department of Labor’s authority to issue any rules under the organic legislation. The regulatory change is particularly onerous and imperils jobs at a time when federal and state governments are supposed to be doing everything possible to promote the creation and retention of new jobs. The SBA believes that the Rule, if it were to go into effect, would eliminate thousands of H-2B and U.S. jobs.