Employers Outraged at DoL’s Demand for Pay of $2/hr for Shepherds

Do you suppose that a group of reasonably well-heeled U.S. employers would object if the government made them pay their foreign workers $2.00 an hour plus room and board (with "room" sometimes being a tent)?

The answer is "Yes."

The ones who are objecting to this wage rate are the sheep and goat farmers of the American West, who have successfully used special arrangements within the H-2A foreign worker program for at least a generation to subsidize their big ranches.

Belatedly, and under a court order, the Department of Labor is proposing to rewrite the old, industry-slanted arrangements that DoL had made in the past.

All of this involves the preservation of a long-outdated bit of agriculture, the use of shepherds to work 24-7 in upland mountain pastures during the grass-growing season. Such shepherds are currently paid $750 a month plus room and board in the H-2A program. DoL says that in addition to a full-time job caring for the sheep during daylight hours, they are "on call" 24 hours a day to take care of emergencies — such as attacks by coyotes, storms, and serious illnesses within the flock.

It is a terrible job. During Franco's regime in Spain, Basques became a persecuted minority and, in one of the world's smaller refugee flows, Basque men took on the job of watching U.S. sheep by night, getting green cards after half a dozen years in the pasture. After Franco died, the flow of Basques dried up and U.S. ranchers turned to herders from Mexico, Mongolia, and Peru.

The standards laid on by the old (and current) DoL regulations are very minimal: $750 a month plus room and board. "Room" in this setting does not imply a dwelling with a roof, windows, heat, power, or running water. It allows for the use of portable trailers or tents. "Board" means that the workers are given groceries and cook for themselves. The wage in California is higher because of state government action.

The Department of Labor, commendably, is trying to double the existing wages, which have been virtually flat for 22 years, and the ranchers are howling. The $2.00/hour figure mentioned earlier is based on a 24-7 job situation. (There are 720 hours in a 30-day month; the wage rates proposed by DoL, which vary from state to state, are mostly in the $1,400-$1,500 a month range.) The proposed $2.00 an hour average, admittedly, includes some sleep time and cooking time.

With wages (using the 24-hour day) currently at about $1.00 an hour plus room and board, the industry hires either no citizens, or virtually no citizens. Because of the current DoL rules, this is an industry that is completely dependent on near-indentured, ill-paid, and isolated foreign workers. As I have suggested in the past this is a totally out-of-date type of agriculture — like harvesting wheat with a scythe — and it should not be kept alive artificially by the use of under-paid foreign workers.

The ranchers, of course, disagree. Even before the proposed rules were published their trade group, the American Sheep Industry Association said, "the rule that the DoL is to propose will be a disaster for the sheep industry."

The Current Situation. How did we get to this point? Several one-time H-2A shepherds, now holding green cards, sued the Department of Labor back in 2011, saying that they would like to do this work, but that wages and working conditions were intolerable. They added that the department had issued the regulations in an inappropriate, overly casual way and that the regulations should be worked out in the usual manner, including a request for comments and publication of the proposed regulations in the Federal Register. The case got to the U.S. Court of Appeals for the District of Columbia, which ruled in favor of the workers, as we previously reported.

The case is Mendoza v. Perez, with the former being a green card holder and the latter being the Secretary of Labor at the time. The decision can be seen here. The appeals court remanded the case to the district court, which, in turn, ordered DoL to come up with a new set of regulations.

The department issued a long notice on April 15 explaining what it proposed to do, and why, as well as the proposed regulations. The deadline for comments is May 15.

Although the department's document is written in the usual, color-it-all-grey verbiage of the government, sometimes the grim conditions endured by the shepherds shine through the fog. Here are two examples:

The Department has found employers who do not provide water at all times, and employees who were forced to melt snow for drinking water.

and

The rule proposes continuing the current requirement that in such a temporary situation, each worker must have a separate bed or bedding (e.g., sleeping bag).

The temporary situation the DoL has in mind is an emergency in which, for no more than three days, two workers could be housed in a facility meant for one. The employers, in effect, are told that they cannot force the shepherds to sleep together. Similarly, ranchers were told that if they did not furnish a source of heat they had to provide adequate winter clothing and sleeping bags.

That such bare-bones requirements have to be spelled out by the DoL suggests that working from a portable home on the range can be pretty primitive.

Incidentally, the department uses the term "sheepherder" in its writings. I prefer the shorter, more poetic, and probably older term used in the Bible.

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