Landscaping Groups Sue Over New H-2B Regulations - Law360

Allissa Wickham, Law360, June 2, 2015 - "Several landscape businesses and groups launched a suit in Florida federal court Monday challenging brand-new regulations for the H-2B program issued by the U.S. Department of Labor and U.S. Department of Homeland Security, saying the new rules are harming domestic workers.

Brought by Florida landscaping company Bayou Lawn & Landscape Services and groups like the National Association of Landscape Professionals, the suit challenges two H-2B rules jointly issued by DOL and DHS in April, after previous versions were struck down by a federal judge.

The plaintiffs claim that the new rules are arbitrary and "procedurally invalid," and violate both the Administrative Procedure Act and the Regulatory Flexibility Act. The rules are also causing "palpable injury" to domestic workers, the suit claims.

"The new rules will have a significant economic impact on a substantial number of small entities, including plaintiff small businesses and the small business members of plaintiff associations," the complaint alleges.

Under an interim final rule issued in April, the departments laid out the process through which employers can get a labor certification for the H-2B program. In a separate rule, they outlined the methodology for calculating prevailing wages to be paid to H-2B workers.

The two departments had worked feverishly to craft a joint regulations after U.S. District Judge M. Casey Rodgers chucked the DOL's 2008 H-2B program rule in March after finding the agency lacked the power to enact it. She also struck down a 2012 rule governing the program in December, which the DOL is appealing to the Eleventh Circuit.

While the new interim final rule is very similar to the 2012 final rule, it does include a few changes, such as new recruitment requirements, and a mandate that a job remain available to U.S. workers until 21 days before the employer needs to fill the job.

After the rules came out, attorneys told Law360 that the small tweaks to the regulations could make the program less accessible to small businesses. Daniel Kowalski of the Fowler Law Firm also forecasted that the new regulations could prompt litigation, since the regulated community wasn’t happy with the 2012 rule in the first place. Notably, Bayou Lawn brought the lawsuit over the 2012 H-2B regulations, as well.

In the complaint filed Monday, which names DHS Secretary Jeh Johnson and DOL Secretary Thomas Perez as defendants, the plaintiffs claim that failure to provide notice of the new rules violated the APA. The also allege that the new regulations arbitrary and capricious because DOL doesn't have rulemaking power regarding the H-2B program, among other reasons.

The plaintiffs are seeking a declaratory judgment that the new regulations are invalid, and a permanent injunction against them.

"We think the department's violation of the APA is clear," said Wendel V. Hall of the Hall Law Office PLLC, who is representing the plaintiffs. "It's cognizable injury, there's no excuse and it needs to end now, period."

Representatives for DHS and DOL did not immediately return requests for comment Tuesday.

The plaintiffs are represented by Robert C. Palmer of Wade Palmer & Shoemaker PA and Wendel V. Hall of the Hall Law Office PLLC.

Counsel information for the government defendants was not immediately available.

The case is Bayou Lawn & Landscape Services et al. v. Johnson et al., case number 3:15-cv-00249, at the U.S. District Court, Northern District of Florida.