Appeals court will have final say on law, experts say
By Mateusz Perkowski
Growers who use the federal H-2A guest worker program face legal uncertainties about whether they must provide housing for the families of domestic workers.
Administrative law judges with the U.S. Labor Department have made several contradictory rulings on the issue this year, and legal experts say farmers may not get any clarity on the matter until 9th U.S. Circuit Court of Appeals decides the issue. Such a decision, they say, may be a long time coming.
“That question won’t have a definitive answer until the 9th Circuit weighs in,” said Keith Cunningham-Parmeter, a labor law professor at Willamette University.
The disparate rulings “seem to be crying out for guidance from the federal circuit court of appeals,” he said.
The legal dilemma centers on how federal statutes governing the H-2A program square with state housing discrimination laws.
In March, an administrative judge found that providing such housing for families is not a “prevailing practice” in Oregon.
Such a requirement would “create a heavier burden for H-2A agricultural employers than for non-H-2A agricultural employers,” said Administrative Judge Christine Kirby.
The effect would be that regular employers would not be required to provide any farm worker housing, but H-2A farms would have to provide it to workers as well as their families, she said.
The ruling arose from a dispute between Adelsheim Vineyards of Newberg, Ore., and attorneys for the Department of Labor who claimed the company must provide family housing.
In a similar case involving DOL and Cal Farms of Oregon City, Ore., an administrative law judge in April reached a contrary conclusion.
In that case, administrative judge William Dorsey found that, under Oregon law, farmers who offer housing to single workers must also provide it for workers with families.
Excluding families with children from housing provides an economic advantage for farmers, who would then have an incentive to hire H-2A workers rather than domestic workers with families, the judge said.
“This detriment to American farm workers violates a fundamental tenant of the H-2A program,” said Dorsey.
In a third ruling on the issue, Administrative Law Judge Richard Clark found in May that Sakuma Bros. of Burlington, Wash., did not have to provide housing to non-employee family members.
Washington’s housing discrimination laws “cannot be read so broadly” as to require H-2A employers to provide housing to workers’ families, the judge said.
The judge also said he was aware of the “opposite results” reached in the prior rulings, but “they are not precedential.”
For any one of these decisions to set a precedent within the DOL, it would likely have to be upheld by an administrative appellate board, said Judith Giers, an adjunct law professor at the University of Oregon and an attorney specializing in appeals.
However, that decision could also be challenged before the 9th circuit, she said.
Until a precedent is set, H-2A growers who face similar questions are in a “limbo period” in terms of their legal obligation to provide family housing, Giers said.
The 4th U.S. Circuit Court of Appeals has found that farmers don’t have to provide family housing, but that decision only applies to several eastern states within its jurisdiction, said Cunningham-Parmeter.
“In that part of the country, the question is settled, but it’s not here,” he said.
The 9th circuit, which has jurisdiction over much of the West, can seek guidance from the 4th Circuit but isn’t bound by its decision.