Wyatt Employment Law Report

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H-2B or Not to Be: Florida District Court Enjoins DOL H-2B Regulations for Now

By Glen M. Krebs

The United States District Court for The Northern District of Florida (Pensacola Division) in the case of Bayou Lawn & Landscape Services, et al., v. Hilda Solis, et al., has enjoined the implementation of the H-2B regulations which were scheduled to take effect on April 27, 2012.  The new regulations were to change the methods and timing for the labor certification portion of the H-2B process and impose additional requirements on employers with respect to H-2B workers.  Not for a while. 

The plaintiffs are associations, companies, and individuals which participate in the H-2B program or are comprised of members who participate in the program.  They filed the motion for a temporary restraining order and preliminary injunction, seeking to enjoin the Department of Labor (DOL) from enforcing the rules, which were scheduled to go into effect on April 27, 2012.  The court held a hearing on the plaintiffs’ motion on April 24, 2012. Based on the plaintiffs’ complaint, as well as the parties’ memoranda, submissions, and arguments, the court determined that a preliminary injunction prohibiting DOL from enforcing the challenged rules during the pendency of this matter should be issued to preserve the status quo.  The parties now have sixty (60) days to submit their motions for summary judgment and an additional fourteen (14) days to respond to the opposing parties’ motion. 

The following are three basic reasons for the court’s decision to enjoin the implementation of the new regulations, in their own words:

1.         “[F]inding no express grant of Congressional authority, the court finds that the plaintiffs have established a substantial likelihood of success on the merits of their claim that DOL lacks authority to promulgate the rules at issue in this case.”

2.         “The court also finds, based on the declarations submitted by the plaintiffs, that the plaintiffs have demonstrated a substantial threat of irreparable harm. DOL does not dispute that the new rules will result in increased costs to the plaintiffs; rather, DOL argues that the plaintiffs will not immediately realize the effects of the new rules. The plaintiffs, however, have demonstrated that the rules will have an immediate and significant impact on them, including their current bidding processes, and will result in lost revenue, customers, and/or goodwill.”

3.         “The court is aware that permanently enjoining enforcement of the new rules will have serious repercussions insofar as the H-2B program is concerned; notwithstanding, DOL has not articulated any harm it will suffer as a result of a mere delay in the implementation of the rules.”

 And so for the time being, H-2B employers should proceed under the current rules in effect prior to April 27, 2012.

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Acting NLRB General Counsel Issues New Guidelines for Seeking Section 10(j) Interim Relief in Connection with Discharges Occurring during Union Organizing Campaigns

By Edwin S. Hopson

On September 30, 2010, the NLRB Acting General Counsel announced an initiative to more quickly respond to charges filed when employees are discharged during a union organizing campaign. Henceforth, in all cases found to have merit by the NLRB regional directors, the General Counsel’s office in Washington, D.C. will review the case to determine if seeking a federal injunction compelling reinstatement of the employee would be appropriate pending litigation of the underlying unfair labor practice case. The injunction would be sought under Section 10(j) of the National Labor Relations Act once authorized by the Board.  Continue reading