(CN) - Temporary work visas available to foreign herders lower wages and worsen working conditions for U.S. herders, the D.C. Circuit ruled, saying the Labor Department must strengthen its regulations.
U.S. sheepherders, goatherds and cattle herders brought the challenge after changes that the U.S. Department of Labor made in 2011 to the H-2A temporary worker visa program allowed herding operations to bypass protections for U.S. workers and hire cheap foreign labor instead. The revisions appeared in two Training and Employment Guidance Letters (TEGLs), published in the Federal Register without having gone through notice and comment procedures required by the Administrative Procedures Act.
Original regulations for the H-2A visa program required an employer to show that there were not sufficient qualified U.S. workers to fill the open positions, and that hiring foreign workers would not adversely effect the wages of U.S. workers in the same position.
The H-2A program also set wage minimums and housing standards on employers that hire foreign employees.
"Under the general H-2A regulations, employers wishing to hire foreign laborers would be required to pay herders the Adverse Effect Wage Rate, which in 2011 ranged from $8.97 per hour to $12.01 per hour, depending on the state," Judge Janice Brown wrote for the three-judge panel. "Under the special procedures set forth in the TEGLs, however, employers need only pay herders the prevailing wage rate, which in 2011 was $875 per month plus room and board for cattleherders and from $750 to $1,422.52 per month plus room and board for sheepherders and goatherders, depending on the state."
In Colorado, a sheepherder makes less than $4.69 per hour for a 40-hour work week, well below the adverse effect wage rate of $10.48. The department also permits lower standards for herder housing than for other employments.
Reymundo Zacarias Mendoza and his fellow plaintiffs originally came to the United States as herders on H-2A visas, but they now have legal immigration status and claim that lax visa standards have made working conditions and wages so poor that they have been pushed out of the herding business.
Two intervening associations representing herders told the court that virtually all of their members' employees are foreign workers.
A federal judge dismissed the lawsuit for lack of standing, but the D.C. Circuit reinstated the case last week and granted plaintiffs summary judgment.
"The TEGLs adversely affect herders by lowering wages and worsening working conditions, whether they are compared to the alternative of eliminating special procedures for herders altogether or retaining the pre-2011 special procedures," Brown wrote.
Even though plaintiffs do not currently work as herders, all have expressed the interest in working as a herder again, and have the requisite experience to do so. Even if they have not all recently submitted applications for a herding job, "a person can involve himself in a job market by means other than submitting formal applications," the 38-page opinion states.
"As participants in the labor market for herders, the plaintiffs were injured by the Department of Labor's promulgation of the TEGLs and fall within the zone of interests protected by the INA," Brown added, abbreviating the Immigration and Nationality Act. "On the merits of their claim, the plaintiffs are entitled to entry of summary judgment in their favor. The TEGLs are legislative rules and the Department of Labor violated the Administrative Procedure Act by promulgating them without providing public notice and an opportunity for comment."
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