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Federal Appeals Court Invalidates Department of Labor Rules That Set Unfair Employment Standards for Sheep and Cattle Herders

June 13, 2014

Federal Appeals Court Invalidates Department of Labor Rules That Set Unfair Employment Standards for Sheep and Cattle Herders

Government Must Undertake New Rulemaking to Set Herders’ Wages and Housing Conditions

WASHINGTON, D.C. – U.S. and foreign herders will benefit from a decision today by the D.C. Circuit to invalidate U.S. Department of Labor (DOL) rules that permit employers to pay herders far less than other agricultural workers and allow lower standards for employer-provided housing, Public Citizen said.

“Today’s decision will force the DOL to reconsider the unjust employment standards that it set for sheep and cattle herders,” said Julie Murray, an attorney at Public Citizen and counsel for the plaintiffs. “It is a victory for U.S. and foreign herders alike, who toil for unconscionably low pay and are often forced to live in abysmal housing conditions.”

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 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 U.S. herders who seek herding positions at wages and working conditions that have not been depressed by DOL’s rules.

In a unanimous decision, the D.C. Circuit reversed a federal district court decision holding that the plaintiffs lacked standing to bring their challenge to the DOL’s rules and then reached the merits of the plaintiffs’ claim. The court of appeals concluded that the DOL rules are “legislative” rules that set U.S. policy for ensuring that the admission of foreign herders does not adversely affect American workers.

Given the nature of the rules, the court of appeals held that the DOL violated the Administrative Procedure Act by adopting the rules without notice and an opportunity for the public to comment. It found that the rules adversely affect herders by lowering wages and worsening working conditions, and it sent the case back to the district court to determine whether to vacate the rules immediately or leave all or a portion of them in place while the DOL undertakes a new rulemaking.

“The public will soon have an opportunity to weigh in on rules to replace those invalidated by the D.C. Circuit,” Murray said. “This time around, we hope the government does the right thing by adopting new rules that protect vulnerable workers.”

Edward Tuddenham, Jennifer J. Lee of Colorado Legal Services’ Migrant Farm Worker Division, and P. Alex McBean of Utah Legal Services, Inc., are co-counsel for plaintiffs in the case.

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