A Colorado-based Latino rights group has filed a class-action suit on behalf of native-born and immigrant shepherds alleging that the Labor Department under President Obama has set wages too low for people who mind sheep. The lawsuit demands that the department immediately cease certifying visas for shepherds to come to the U.S. until the wage rules are changed.
The lawsuit was filed last week in a Colorado federal court by the nonprofit Hispanic Affairs Project. It argues that the department has violated federal regulatory rules by not properly updating the wage floors for shepherds under the H2-A visa program, which allows foreign agricultural workers to temporarily work in the U.S.
“This lawsuit aims to address the (department’s) repeated and ongoing violation of its own regulations, which have caused the exclusion of nearly all U.S. workers from the sheepherder labor force and replaced them with impoverished foreign workers on H-2A visas,” the nonprofit claimed in the court filing.
An estimated 2,000-2,500 shepherds come into the U.S. each year through the visa program. Most come from South American countries like Peru, where shepherding is still a common occupation.
An attorney for the nonprofit declined to comment on the case. A spokeswoman for the Labor Department did not have a comment at presstime.
Under the H2-A program, most employers are required to pay workers either the local hourly minimum wage or the department’s estimated prevailing local rate for the work, whichever is higher. Shepherds were excepted from these rules three decades ago when the department, citing the unique nature of the work, instead instituted statewide monthly minimums.
In eleven states, mostly western and mountain ones, that wage is $750 a month. In Arizona, it is $800. That works out to an hourly rate of about $2-3 an hour, the nonprofit claims. Not all rates are that low. Oregon’s floor is about $1,300 and California’s is about $1,400.
The low wage floors are not low because the department has overlooked the problem. The wages for seven of the states were last adjusted by the department in 2013. The four others were modified in 2011. The department’s usual statistical methods don’t apply well here, the lawsuit alleges.
“It’s really challenging in this particular industry because they are supposed to analyze the average for workers in (the) industry … and in this case there are almost none,” Nina DiSalvo, the lawyer for the nonprofit, told the Courthouse News Service last week.
The lawsuit has two plaintiffs. one is Rodolfo Llacua, a U.S. citizen and shepherd living in Grand Junction, Colo. Llacua is currently unemployed, a problem the lawsuit blames on the visa program.
“He is in direct competition with current H-2A sheepherders for work in this labor market but is effectively excluded from it because the DOL’s illegal wage rules allow for the importation of very cheap foreign labor,” the nonprofit stated.
The other plaintiff is “John Doe,” a H2-A visa worker working in Colorado who fears reprisal if his name is made public. The lawsuit alleges that immigrant workers like him are forced to accept poverty wages because of the department’s rules.
“This harm is also ongoing and widespread. Every month, the DOL certifies hundreds of new applications for foreign H-2A sheepherders, which means that the DOL continually reinforces its illegal application of the 2011 Special Procedures for more workers and thereby perpetuates the depression of wages for this labor force” the nonprofit alleged.
