U.S. Department of Labor (DOL) rules that allow herders to be paid far less than other agricultural workers and live in unsanitary conditions are illegal and should be invalidated, Public Citizen told the U.S. Court of Appeals for the District of Columbia Circuit.
Through the H-2A visa program, foreign agricultural workers may come to the U.S. to work as herders if the government certifies that qualified U.S. workers are not available and that the employment of foreign workers will not adversely affect similar U.S. workers’ wages and working conditions. In 2011, the DOL announced “special procedures” that exempt herder employers who wish to participate in the H-2A program from requirements that they offer important workplace benefits and protections to U.S. workers before being allowed to hire H-2A workers under those same employment terms. The DOL’s rules permit herders to be on call 24 hours a day, seven days per week and to earn as little as $750 a month (or the equivalent of $2.34 per hour in many cases). The rules also require employers to offer only the most basic housing accommodation for herders living on the range. Those accommodations do not need to include electricity, running water, refrigeration or toilets.
Public Citizen attorneys are lead counsel for three herders who seek herding positions at wages and working conditions that have not been depressed as a result of the DOL’s rules. The workers maintain that the agency’s rules were illegally adopted because they were issued without notice and an opportunity for the public to comment on them, in violation of the Administrative Procedure Act. The U.S. District Court for the District of Columbia dismissed the case in February 2013 on the ground that the workers lacked standing to challenge the rules. Public Citizen is asking the appellate court to reinstate the case and hold that the DOL violated the law when it issued the rules.
“The DOL’s unlawful rules for the treatment of herders are just the most recent example of the government’s abject failure to protect this vulnerable set of workers from exploitation,” said Julie Murray, the Public Citizen attorney arguing the case. “At a minimum, the government owes the public an opportunity to comment on and to receive an official explanation for the abysmal wages and working conditions that the DOL has permitted in the herding industry.”
Based on a survey with H-2A herders in Colorado, a distressing report by the Migrant Farm Worker Division of Colorado Legal Services documents herders’ low pay, poor housing and widespread exploitation. Of those herders surveyed, more than 60 percent worked 80 or more hours per week, 70 percent never had access to a functioning toilet and more than 70 percent had no access to a refrigerator to store food.
“All herders ‒ U.S. and H-2A alike ‒ deserve a fair wage and clean, decent housing,” said Murray. “The government’s unlawful rules fail to deliver, and it is past time for their invalidation.”