Riding Herd Over Workers’ Rights?

But attorneys with the watchdog group Public Citizen, which filed the lawsuit on the men’s behalf, are essentially arguing that herding wages and conditions are so bad that U.S. permanent residents will not take them.

The lawsuit, which had a hearing before a federal appeals court on February 25 after being dismissed in February of 2013, addresses a procedural issue: the fact that the U.S. Department of Labor has issued a series of ​“special procedures” regarding visas for herders without giving public notice or allowing public comment. In doing so, the lawsuit alleges, the labor department facilitates wages and conditions so poor that U.S. workers cannot (or more accurately, will not) fill the jobs.

The lawsuit doesn’t directly address the fact that the same men did do these jobs as guest workers just a few years ago in similar circumstances, as do scores of other foreign guest workers today. The seemingly narrow and arcane legal argument nonetheless sheds light on the bigger picture: an industry where pay is so low and, the plaintiffs argue, conditions so rough that only those desperate to come to the United States will work in it.

Though comprehensive hard data is difficult to come by, it is widely understood that many — perhaps the majority — of the U.S.’s modern-day ​“cowboys” are guest workers from South America, often men hailing from herding cultures in the Andes.

The profession may sound carefree, even romantic. But in the U.S., herding is grueling, dangerous, poorly compensated and rife with labor abuses.

​“I knew it was going to be rough,” plaintiff Conovilca Matamoros told the Denver magazine 5280​.com. But, he added, ​“they never told me they were going to treat me like an animal.”

Herders often work 24 hours a day, traveling and living with the herd in remote country. They are exposed to extremely harsh and sometimes dangerous weather conditions while living in crude dwellings such as sparse campers or tents. Like farm workers they have always been exempt from federal minimum wage laws. Under the complicated guest worker program sheep and goat herders must be paid at least $750 a month in most herding states. Based on the number of hours herders typically work, this comes out to about $2.34 per hour, according to the appeal.

A 2010 study of 93 Colorado guest worker herders found that most have never had a day off, more than 80 percent were not permitted to leave their ranch, 70 percent never had access to a functioning toilet and half have never even got to read their employment contracts.

Federal law requires that when an employer seeks H-2A visas to be able to hire guest workers to do agricultural work on a temporary, ​“non-immigrant” basis, they must first advertise the jobs and attempt to fill the vacancies with U.S. workers. And if they do hire foreign workers, the hiring must not create a situation that undermines wages and benefits for U.S. workers in that sector. (Specifically, the H-2A program is governed by the Immigration and Nationality Act, as amended by the Immigration Reform and Control Act of 1986.) Public Citizen staff attorney Julie Murray tells In These Times that thanks in part to the ​“special procedures” allowed by the Department of Labor, the hiring of foreign herders at low wages in rough conditions has indeed brought down standards to the point U.S. workers are not taking the jobs. 

Two letters released by the Department of Labor in 2011 outlined the latest version of the special procedures, essentially continuing exemptions from H-2A visa requirements that the department had laid out in a series of communications going back to 1987.

Murray says that each successive special procedure was adopted without a public comment period. She explains that the special procedures are de facto exemptions for the herding industry from protections or benefits that other agricultural employers using workers with H-2A visas are required to provide.

The special procedures, Murray says, ultimately lead to lower wages for herders. More concretely, they specify that employers do not have to provide herders the same type of housing that must be provided to other agricultural workers. Herders’ housing is not required to have modern toilets, electricity or running water, which seems intuitive as herders are moving through the countryside with the animals. But Murray says herders often live in one place for extended periods of time, and even then housing is generally a rudimentary trailer without water or electricity.

​“We’re not against foreign workers in herding,” Murray says. ​“But the Department of Labor has allowed wages and working conditions for herders to become so depressed that it affects U.S. workers who would like to return to herding.”

​“It’s not that we think conditions throughout the agricultural industry are good,” Murray adds, pointing to pervasive wage theft and poor housing in other agricultural sectors that employ H-2A workers. ​“But the Department of Labor has singled out herders for less favorable wages and working conditions.”

The lawsuit, originally filed in October 2011, names Labor Secretary Hilda Solis and the U.S. DOL as defendants and alleges that by adopting the special procedures without public notice or comment, the labor department violated the Administrative Procedure Act.

Two agricultural organizations that represent employers of herders on H-2A visas filed as interveners in the case, supporting the defendants. The members of these groups, the Western Range Association and Mountain Plains Agricultural Services, essentially stand to benefit by being allowed to continue hiring foreign workers at low wages. 

The U.S. District Court for the District of Columbia dismissed the case in February, 2013, finding that the plaintiffs do not have legal standing to bring the suit as they have acknowledged that they have not actively sought employment in herding since at least May 2011. The men testified that they would like to return to herding, but they have not been able to find jobs with acceptable wages or conditions.

The court found that the herders did not suffer ​“a personal injury fairly traceable to the defendant’s allegedly unlawful conduct,” since they are not currently working in or seeking work in the industry. And while herder employers may only be required to pay $750 per month, the court noted that an H-2A registry shows 19 jobs paying $1,400 a month or more. 

The federal court also found that the men are not directly impacted by the H-2A policies governing herders. To demonstrate what the court called the ​“absurdity” of the plaintiffs’ argument, the decision compared it to ​“an individual who claimed an intention to work in a ​‘preferred profession’ as a day laborer picking fruit — so long as the position paid $100,000 per year, permitted hourly breaks in air-conditioned huts, and paid mileage to and from the work site.”

Now the herders are asking the U.S. Court of Appeals for the District of Columbia Circuit to reinstate their case. Murray said attorneys were encouraged by the February 25 arguments, and now they are awaiting the appeals court’s decision.

The lawsuit asks that the special procedures be suspended until the DOL opens them up for public comment — unlike when they were first put in place — and considers the resulting comments. Murray thinks such a process would mean better conditions for herders.

​“If the Department of Labor had to go on the record and explain why these wages and working conditions are consistent with labor law,” she said, ​“I don’t think they could do it.”