H-2B Employers Rebut DHS’ Arguments For Rehearing In G.H. Daniels


Key Points:

1.   Court of Appeals ready to decide if it will reconsider its decision in G.H. Daniels

2. H-2B employers oppose DHS' attempt to delegate its power over the H-2B Program to DOL.


G.H. Daniels is a Court of Appeals decision that loosened Department of Labor’s chokehold over the H-2B Program. It was a clear victory for H-2B employers and for everyone else who wants the H-2B Program to work as Congress intended.

The government therefore wants G.H. Daniels reversed. The Department of Homeland Security asked the judges who decided G.H. Daniels to reconsider their decision.  Ominously, the judges asked for a brief from G.H. Daniels.

On November 2, 2015, H-2B employers filed a “friend of the court” brief opposing the government's request.  A friend of the court brief is a brief filed by an interested non-party to help the Court.  The Outdoor Amusement Business Association commissioned the filing of this brief by its counsel, Wayne Pierce.

The government’s defense of DOL’s chokehold is based on the so-called “Housekeeping Statute.” The law provides that powers, privileges, or duties assigned to DHS may be undertaken by another.  In this instance, the government argues that DHS legally assigned its H-2B functions to DOL.   

The industry’s brief thoroughly rebuts the government’s arguments.  It shows that the plain language of the Housekeeping Statute does not authorize DOL to assume DHS’ power.  On the contrary, the brief shows that Congress did not authorize DHS to put DOL in charge of the H-2B Program.  

There is no way to tell when the Court of Appeals will rule on the Petition for Rehearing. Rest assured, however, the news will appear here when it does.