Lone Shepherd Fighting Feds Over Low Wages


     WASHINGTON (CN) — A federal judge ruled that a Hispanic-American shepherd has standing to challenge the Department of Labor’s wage regulations for foreign agricultural workers with temporary visas.
     The original lawsuit, filed by a group of shepherds in Colorado Federal Court in August 2015, challenged the U.S. Department of Labor’s 2011 training and employment guidance letters that established special procedures for hiring foreign agricultural workers in America on temporary H-2A visas.
     The regulations set a wage floor that the plaintiffs claimed was based on “antiquated data,” and left some workers making as little as $2 to $3 an hour.
     Several months after the shepherds’ lawsuit was filed, a new 2015 rule was enacted that was meant to supersede the 2011 regulations. But the plaintiffs say the new rule still did not create a “temporary or seasonal” program for foreign agricultural workers, still relied on outdated numbers to determine their work hours, and locked current H-2A shepherds into a lower wage.
     On Friday, Chief U.S. District Judge Beryl A. Howell ruled that one sheepherder, Hispanic-American shepherd Rodolfo Llacua, had standing to challenge the rule based on the competitor-standing doctrine, which relates to regulatory changes increasing economic competition.
     “Mr. Llacuna’s ‘preferred job is working on the range with sheep,’ something he considers his ‘specialty because it is what [he has] done [his] whole life,'” Howell wrote. “He avers that he has been in contact with people who are in the herding industry as well as employers, and ‘[found] out about [a] job as a sheepherder in [a] ranch in Utah.’ He knows, however, that employers ‘have a policy of paying their workers at or around the minimum wage allowed,’ and, consequently, that he would make only $1200 a month, which is insufficient for him to support his family.”
     Llacuna, a U.S. citizen who first came to the country as an H-2A sheepherder, would be willing to return to a shepherding job for $12 per hour, according to the ruling.
     This, the opinion says, attests to the fact that Llacua actively wanted to work in the industry in which he could only hope to make an impractical wage, which established that Llacua had been injured under the competitor-standing doctrine.
     “The court finds that the plaintiff Mr. Llacua, an American former sheepherder, has demonstrated standing to bring all Rule 2015 claims against the federal defendants,” Howell wrote.
     But the judge dismissed the other plaintiffs in the suit, which included two foreign sheepherders working in the U.S. on temporary H-2A visas, and a former herder who intends to return to the U.S. on the same visa.
     “None of these foreign plaintiffs is part of the class of American workers subject to the protection of the [Immigration and Nationality Act] provision under which the 2015 Rule was promulgated and, consequently, may not seek relief under the [Administrative Procedures Act],” Howell wrote.
     Plaintiffs’ back-pay claims, which accuse the Department of Labor of engaging “in illegal, concerted conduct to fix the wages that all member sheep ranches offer to domestic and foreign shepherds at precisely the government-set minimum wage,” were transferred back to Colorado, where their employment contract originated.

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