Background
Dream With Colors, Inc. is a certified H-2A employer, participating in the federal seasonal agricultural workers program that allows temporary workers to enter the United States for seasonal employment before returning home. Over a decade, at least 10 of Dream’s former H-2A workers left to work for Roberto Santos and his landscaping business, R.A.S. Landscaping. One former employee, Ofelia Ramirez, married Santos and began working for RAS in 2014. In March 2023, Dream discovered that some of its former H-2A workers were working for RAS.
Dream filed suit against Santos in September 2023, seeking declaratory judgment that Santos violated Dream’s rights under the H-2A program and alleging tortious interference with Dream’s business relationships and contractual expectations with its H-2A workforce. Dream sought injunctive relief preventing Santos from interacting with any of Dream’s H-2A employees. Santos moved for summary judgment, arguing Dream presented no evidence supporting its tortious interference claim.
The superior court granted summary judgment in favor of Santos, finding that Dream had no protected “legal right” under the H-2A scheme to compel its employees to remain or prevent other companies from competing for them. The court found Dream’s general expectation that workers would return “indefinitely” too speculative and noted that competition for employees is not improper conduct.
The Court’s Holding
The Arizona Court of Appeals affirmed, holding that Dream failed to establish the essential elements of a tortious interference claim. The court found that Dream had no valid contractual relationship or business expectancy with its former H-2A workers sufficient to support the claim. The H-2A visa program is temporary and seasonal by definition, and Dream’s workers were at-will employees who signed employment agreements without non-compete provisions. The court rejected Dream’s argument that participation in the federal H-2A program itself creates a protected expectancy that workers will return indefinitely, finding such expectations too speculative.
The court also rejected Dream’s argument that federal law prohibits “poaching” H-2A workers. The court examined 29 U.S.C. Section 1842 and related regulations that Dream cited and found they do not bar third parties from employing individuals who previously worked for another H-2A employer. The cited federal regulations address benefits Dream must provide to workers but contain no provisions creating an expectation that seasonal workers will return year after year. As to the worker Melchor specifically, whom Dream alleged abandoned his employment to work for RAS, the court found no evidence in the record that Melchor ever actually worked for RAS.
Finally, even assuming Dream had a protected business expectancy, the court held Santos’s conduct was not improper. Competing for workers by offering higher pay and benefits is lawful, and the court found no evidence that Santos induced workers to abandon H-2A status or engaged in unlawful conduct. The court noted that whether RAS improperly classified workers as independent contractors was irrelevant to the tortious interference analysis, as there was no evidence this misclassification caused Dream’s workers not to return.
Key Takeaways
- H-2A employers cannot prevent competitors from hiring their former seasonal workers; the temporary nature of the H-2A program precludes creating a protected business expectancy in such workers.
- At-will employees without non-compete agreements create no enforceable expectation that they will remain with or return to an employer indefinitely.
- Lawful competition for workers through better pay and benefits does not constitute improper tortious interference.
- Federal H-2A regulations do not prohibit third parties from recruiting or hiring former H-2A workers.
Why It Matters
This decision significantly limits the ability of H-2A employers to prevent competition for seasonal workers. While employers in the H-2A program bear substantial costs for recruitment, visa processing, and worker transportation, the court made clear that these investments do not create enforceable legal rights to retain or have workers return, particularly where workers are at-will employees without restrictive covenants. Attorneys advising H-2A employers should recognize that contractual protection requires explicit non-compete or non-solicitation agreements, not reliance on the program’s structure alone.
More broadly, the decision reinforces fundamental principles of employment law: absent a valid contract or restrictive covenant, employers cannot use tort law to prevent competitors from hiring at-will employees or offering them better compensation. The court’s holding also clarifies that alleged violations of federal employment regulations (such as worker misclassification) do not independently establish tortious interference, which requires proof that improper conduct actually caused the interference with the business relationship.