District Court Enjoins DOL from Enforcing New H-2B Rule | Practical Law

District Court Enjoins DOL from Enforcing New H-2B Rule | Practical Law

On April 26, 2012, in Bayou Lawn & Landscape Services v. Solis, the US District Court for the Northern District of Florida enjoined the US Department of Labor (DOL) from enforcing its new rule governing the H-2B guest worker program. The plaintiffs claim that the DOL has no authority to issue the rule.  Implementation of the new rule is delayed while this case is adjudicated.

District Court Enjoins DOL from Enforcing New H-2B Rule

Practical Law Legal Update 1-519-1937 (Approx. 4 pages)

District Court Enjoins DOL from Enforcing New H-2B Rule

by PLC Labor & Employment
Published on 27 Apr 2012 • USA (National/Federal)
On April 26, 2012, in Bayou Lawn & Landscape Services v. Solis, the US District Court for the Northern District of Florida enjoined the US Department of Labor (DOL) from enforcing its new rule governing the H-2B guest worker program. The plaintiffs claim that the DOL has no authority to issue the rule. Implementation of the new rule is delayed while this case is adjudicated.
On April 26, 2012, in Bayou Lawn & Landscape Services v. Solis, the US District Court for the Northern District of Florida enjoined the DOL from implementing its new rule on the H-2B visa program for workers performing temporary or seasonal non-agricultural labor or services. The rule was scheduled to take effect on April 27, 2012 (see Legal Update, DOL Issues New H-2B Regulations That Place New Requirements on Employers and Provide New Protections for Workers).
The plaintiffs claim that:
  • The DOL lacks authority to issue the new rule.
  • The rule was issued in violation of the Administrative Procedure Act and the Regulatory Flexibility Act.
The District Court ruled that the plaintiffs, which include the US Chamber of Commerce, have standing to bring this claim because they all participate in the H-2B program or have members that do, and they allege that the new rule would inflict immediate and irreparable injury on their business operations.
The plaintiffs also sought a preliminary injunction, which the District Court granted because:
  • The plaintiffs established:
    • a substantial likelihood of success on their claim that the DOL lacks authority to promulgate the new H-2B rule; and
    • a substantial threat of irreparable harm.
  • The DOL did not identify any harm it would suffer if the rule's implementation is delayed.
  • The injunction is not adverse to the public interest.
As a result of this ruling, the DOL is enjoined from enforcing the new H-2B rule, pending the outcome of this case.
Update: On May 16, 2012, in a notice published in the Federal Register, the DOL announced that, while the District Court's injunction in Bayou Lawn & Landscape Services v. Solis is in effect, employers must file H–2B labor certification applications under the 2008 H–2B Rule. Employers must use the procedures and forms associated with the 2008 H–2B Rule for which the DOL has received an emergency extension under the Paperwork Reduction Act. The Office of Foreign Labor Certification will provide additional filing guidance for employers on its website.