Judge Unconvinced DOL Allows Shepherds to be Treated Unfairly

WASHINGTON (CN) – Advocates for immigrant shepherds failed to convince a federal judge the U.S. Labor Department violated its own regulations by allowing the foreign workers to be paid dramatically less than the federal minimum wage for an extended period.

In a lawsuit filed in August 2015, the Hispanic Affairs Project said the workers, all of whom hold H-2A visas, have been working for between $2 and $3 an hour.

In allowing this, the advocacy group said, “the DOL has failed to comply with three regulatory requirements in violation of the Administrative Procedure Act.

“These requirements govern the DOL’s techniques for calculating a wage floor for sheepherders in the H-2A program in a way that will not adversely affect domestic workers,” the complaint says. To do that, the DOL must: (1) update its determination of the sheepherder wage floor annually, (2) rely on statistically valid data to determine the wage floor, and (3) rely on current data.”

The government’s failure to adhere to these standards has prevented the shepherds from earning a living wage, the group said.

Joining it as a plaintiff in the case is Rodolfo Llacua, a Peruvian who worked as a shepherd in Colorado for 12 years.

Additional defendants named in the case are the U.S. Homeland Security, and the Western Range Association and Mountain Plains Agricultural Service, both of which employ shepherds.

But in a win for the Labor Department, and no doubt American ranchers, U.S. District Judge Beryl Howell, sitting in Washington, DC, refused to grant the plaintiffs summary judgment and disallowed many of their exhibits.

Under the Immigration and Nationality Act of 1952, the H-2A visa program allows American employers to hire foreigners who want to perform agricultural labor or services in the U.S. for a stint of time.

In her July 7 opinion, Judge Howell says for an American company to import a foreign worker, the company has to prove the importation will not adversely affect American workers’ wages who are similarly employed.

“The default AEWR [adverse effect wage rate] ‘is a specially calculated wage based on the Department of Agriculture’s Farm Labor Survey, which approximates what the prevailing wage would be if not for the hiring of foreign workers,’” Howell wrote. “Under the TEGLs, however, DOL prescribed a special AEWR for herder occupations in light of ‘the unique occupational characteristics of herding — including spending extended periods in isolated areas and being on call twenty-four hours a day, seven days a week to protect livestock.’”

The judge held the Labor Department “rationally concluded, on the basis of numerous comments, that the FLS-based AEWR would not protect U.S. workers. Under these circumstances, the agency looked to the federal minimum wage and provided a non-arbitrary rationale for settling on that wage. This is sufficient to withstand APA review.”

The plaintiffs accused the defendants of violating the permanent work-visa policy, “because the time period authorized for shepherd work under the 2015 Rule is neither ‘temporary’ nor ‘seasonal’ as those terms are defined in the H–2A statute … in addition to ‘conflict[ing] with DOL and DHS definitions of ‘temporary’ and ‘seasonal,’ it ‘ignores the relevant information in the administrative record about the permanent and multi- seasonal nature of shepherd work,’” the order states.

But Howell dismissed the plaintiffs’ claim the rule authorizes the issuance of permanent, non-seasonal visas to H–2A shepherds.

“The plaintiffs’ attack on the ‘policy’ of issuing permanent H–2A visas boils down to an attack on DHS’s H–2A regulations, which is improper for two reasons,” the judge wrote. “First, the plaintiffs do not raise such a claim in their operative complaint, and they expressly disavow making any such claim in their summary judgment briefing … Second, as the government points out… the six-year statute of limitations to bring a facial challenge to the DHS H–2A regulations has passed, since the relevant provisions of the DHS H–2A regulations were last revised in 2008.”

The plaintiffs also argued that the rule “expands the geographical scope and nature of shepherd work to encroach on tasks for which there is ample supply of non-H–2A workers.” The plaintiffs said it “does so in a manner at odds with the purported basis for creating separate H–2A shepherd rules in the first place.”

The judge said the plaintiffs’ concerns are misplaced. “At the outset, the plaintiffs conveniently ignore the first and third requirements set out in § 655.200(b), even though those two requirements significantly limit the class of workers whose work is eligible for DOL certification. Focusing only the second requirement, the plaintiffs appear to argue that the more than 50 percent threshold permits H–2A shepherds to spend too much time away from the range and is arbitrary,” the order states.

The judge ruled that the regulations pass APA standards, and dismissed the plaintiffs’ claims that the three provisions fall outside the bounds of what is permissible under the Immigration and Nationality Act, saying the plaintiffs have not demonstrated on any basis on which to vacate.

“At this moment, Hispanic Affairs Project is evaluating the decision of the judge,” HAP’s executive director, Ricardo Pérez, told Courthouse News in an email.

Representatives of the defendants could not immediately be reached for comment.

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