WORKPLACE INVESTIGATIONS
AGRICULTURE
LOOKING AHEAD TO 2025
2024 IN REVIEW
2024 IN REVIEW
Immigration Impact for Agricultural Employers Groups like the United Farm Workers have been touting the Deferred Action for Labor Enforcement (DALE) program, which was expanded under President Biden’s DOL to provide protection from deportation for up to four years if an employee makes a labor-related claim against their employer. However, the Trump administration will roll back a recent DHS interpretation that expanded deferred action to employees who make a labor-related claim. We will also see more I-9 audits in 2025. The Farmworker Protection Rule Will Not Survive The three separate injunctions issued against the new rule have effectively rendered it unenforceable nationwide. While those injunctions are temporary, we don’t expect them to be lifted before President Trump returns to the White House, and we also don’t expect the new administration to fight to reinstate the rule. But stay tuned for updates as all of this plays out. This Trump Administration Will Prioritize Policy Shifts Relating to Employee Rights Under the prior Trump administration, we saw heavy DOL enforcement of wage and hour issues for H-2A employers and agricultural employers in general. We expect the second Trump administration to continue enforcement but to focus more on shifting policies away from protecting H-2A employee rights and potentially toward protecting U.S. workers. Blue States to Push for Unionization of Farmworkers As Feds Turn in the Other Direction While employers can expect a less union-friendly landscape under the Trump administration, blue states will push for “card check” laws (similar to laws already in place in California and New York) or some pathway to unionization for agricultural employees.
New Farmworker Protection Rule Took Effect – But Was Halted By Several Courts The DOL issued a final rule in April that expands employment protections for farmworkers in the H-2A visa program and enhances the agency’s capabilities to monitor and enforce program compliance. The Farmworker Protection Rule took effect on June 28 and applies to H-2A applications filed on or after August 29 this year. However, a federal judge in Georgia blocked the rule for employers in 17 states, just days before it was fully implemented, and two separate federal courts halted different portions of the rule on November 25. Check out our predictions to see what we expect will happen to the rule next year. OSHA Proposed First-Ever Heat Safety Rule and Promised to Target Agricultural Industry The agency announced a new proposed rule in July that aims to protect workers from heat-related illnesses and fatalities. If finalized, this groundbreaking rule would have a particularly big impact on agricultural employers, and OSHA has promised to prioritize programmed inspections in agricultural industries that employ temporary, nonimmigrant H-2A workers for seasonal labor. Agricultural Employers in California Faced Heightened Challenges California employers in the agriculture industry faced challenges after two major developments in March. First, new rules took effect requiring employers to provide a special written notice to H-2A employees. Second, farmworker allegations came to light regarding union organizers’ coercion and misuse of federal funding benefits to promote their services. But employers could breathe a sigh of relief after Governor Newsom vetoed a workers’ compensation bill that would have severely punished employers for failing to comply with heat standards.
A Big Year for Whistleblowers and Coming Clean The Department of Justice announced in March new whistleblower programs that reward companies with reduced sentences for self- reporting misconduct and offer financial rewards to employees who report corporate illegal activities. In April, the DOJ’s Criminal Division rolled out an initiative that rewards individuals who voluntarily disclose original information about illegal corporate misconduct – even if they actively participated in the illegal activity. The whistleblowing only got louder when federal officials launched yet another program in August that gives employees tremendous incentives to report alleged wrongdoing on a very tight timeframe, meaning both public and private corporations need to react with speed and efficiency if they wish to take advantage of valuable cooperation credits for self-reporting. EEOC Guidance Gave Employers Key Workplace Investigation Tips In April, the EEOC updated its enforcement guidance on harassment in the workplace, which included key tips for ensuring your workplace investigations run smoothly, comply with legal standards, and put you in the best position to reach a fair and reasonable outcome. We answered the five biggest questions raised by the guidance. For a case study on what not to do, check out this botched investigation at a medical spa.
Employers Should Stay Vigilant Despite the Changing Administration It is unclear whether the aggressive push to promote whistleblowing will continue under the new administration. But given the huge push this year to incentivize whistleblowers, employers will need to continue to ensure prompt, effective investigations of potential wrongdoing or face the potential of significant fines from regulatory bodies. Use of Artificial Intelligence in Internal Investigations The trend of using AI and related data analytics to spot suspected transactions and unlawful conduct by employees will likely accelerate. These tools can quickly spot outliers and target investigatory resources to the highest risk areas. In 2025, employers will need to evaluate new tools that can assist in spotting potential issues and support workplace investigations with evidence gathering and targeted investigatory tools. LOOKING AHEAD TO 2025
Rebecca Hause-Schultz
Joshua H. Viau
Raymond W. Perez
Jeffrey Shapiro
Sacramento Partner and Co-Chair, Agricultural Industry Group rhause-schultz@fisherphillips.com
Atlanta Co-Regional Managing Partner Co-Chair, Agricultural Industry Group jviau@fisherphillips.com
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Columbus/Washington, D.C. Of Counsel and Co-Chair, Workplace Investigations Practice Group rwperez@fisherphillips.com
Boston Partner and Co-Chair, Workplace Investigations Practice Group jsshapiro@fisherphillips.com
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