Shepherds Sue Uncle Sam for Living Wage

DENVER (CN) - Thousands of immigrant shepherds sued the Department of Labor on Tuesday, claiming they have worked in Colorado pastures for years for only a few dollars a day.

The Hispanic Affairs Project is represented by Denver attorney Nina DiSalvo, who says the Department of Labor's special procedures for sheep and goatherders have been illegal since their inception in 2011.

"They have been illegal the whole time for a variety of reasons," DiSalvo told Courthouse News. "They violate the Administrative Procedure Act, and harm sheepherders and potential sheepherders basically by allowing the wages in the industry to drop so low that they've scared [away] almost all the American workers in the industry, and allowed ranchers to bring immigrant workers into the U.S. at startlingly low wages."

DiSalvo says shepherds are paid $2 to $3 an hour, which she calls "despicably low wages." And they are here legally, she says, on H-2A visas.

"They've suppressed the wages in the industry to such an extreme that U.S. workers are no longer really able to stay in that market."

An estimated 2,000 to 2,500 shepherds work on H-2A visas: temporary visas for seasonal work in agricultural jobs for which there is a shortage of U.S. workers. DiSalvo says the proposed class members are typically from South American countries where sheepherding is a common trade, particularly in the Peruvian and Bolivian Andes.

Plaintiff John Doe is paid $750 a month. He filed anonymously because "He fears serious retaliation in the form of possible physical violence, adverse employment action, removal from the United States, and blacklisting because of his decision to participate in this lawsuit."

Plaintiff Rodolfo Llacua, a U.S. citizen, wants to work as a shepherd but says he cannot afford it "because the DOL's illegal wage rules allow for the importation of very cheap foreign labor," with which he cannot compete.

While the lawsuit specifically tackles the low wages, DiSalvo says there are separate issues with living conditions that should be addressed.

"We have anecdotally heard about some really challenging work conditions," DiSalvo said. In a 2010 report, Colorado Legal Services estimated that 70 percent of Colorado sheepherders did not have access to working toilets, 80 were not allowed off their assigned ranches, and 75 percent worked seven days a week. About one-third of the shepherds said they were sometimes paid less than once a month.

DiSalvo said it's difficult to establish a wage floor for sheepherding.

"It's really challenging in this particular industry because they are supposed to analyze the average wage for workers in a particular industry ... and in this case there are almost none."

But DiSalvo says it is the Department of Labor's responsibility to do so.

"We also filed a motion for a temporary restraining order and we believe there are at least three mechanisms by which the Department of Labor would immediately determine a wage floor in the sheepherding industry," DiSalvo said.

That would require up-to-date data taken from more than 30 shepherds at a time, to establish an average wage, which would be updated annually. DiSalvo says the Department of Labor has relied on "statistically invalid data," for its wage determinations.

"Our lawsuit focuses on encouraging the government to reconsider the way that it calculates what is the prevailing wage," DiSalvo said.

The Department of Labor did not respond Wednesday to a request for comment.

The shepherds want the Department of Labor enjoined from issuing any more H-2A visas for shepherds "at the illegal wage rate," declaratory judgment that Labor's current wage floor is illegal, and new wage standards.

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