Labor Dept. issues final rule for H-2A herders

New rules strengthen protections for workers who herd livestock on the range and viable solution to sheep industry.

The U.S. Department of Labor announced a Final Rule today on the employment of foreign workers in jobs related to the herding of livestock on the range, including the herding of sheep and goats. The regulation, the H-2A Herder Final Rule, implements a methodology to address wage stagnation and prevent adverse effects on U.S. workers. The American Sheep Industry Assn. is supportive of the rule, which takes into account many suggestions made by the industry.

The new rules effect jobs related to the herding of sheep, goats and other livestock on the range because some standard H-2A rule requirements — adopted in 2010 — do not readily apply to unique occupations that place workers in remote locations where they are on call 24 hours per day, seven days a week. The ASI anticipated the changes will impact 2,700 herders who tend to more than one-third of American sheep.

Under the H-2A temporary agricultural worker program, employers who are unable to hire sufficient domestic workers may bring nonimmigrant foreign workers to the U.S. for temporary or seasonal agricultural work. The employer must file an application stating that a sufficient number of domestic workers are not available and the employment of these workers will not adversely affect the wages and working conditions of similarly employed workers in the U.S. Employers using the H-2A program must meet a number of specific conditions relating to recruitment, wages, housing, meals and transportation.

The new H-2A Herder Final Rule creates a single regulation covering all jobs related to herding or production of livestock on the range and streamlines the process for employers filing applications. The regulation responds to a federal court decision in Mendoza v. Perez requiring the U.S. Department of Labor to replace sub-regulatory guidance that previously set the standards for employment of foreign workers in herding occupations on the range.

The nature of these occupations — on call 24/7 in remote locations — and the scarcity of U.S. workers in the occupations have made setting an appropriate minimum wage difficult, resulting in wage stagnation for nearly 20 years.

Under the Final Rule, employers must pay a wage that equals or exceeds the highest of a monthly pay rate (the Adverse Effect Wage Rate published by the department), a collective bargaining agreement wage, or an applicable minimum wage set by court or law. Under the rule, the monthly pay rate for all range occupations will use the federal minimum wage of $7.25 per hour and a 48-hour workweek. Starting in 2017, the monthly pay rate will be adjusted annually based on the Employment Cost Index calculated by the Bureau of Labor Statistics. The Final Rule also allows for a two-year transition to the new pay methodology, with full implementation beginning in 2018.

"The department will implement a wage formula tied to the federal minimum wage similar to our recommendation, and while it is a significant cost increase that won't fit all ranches, the modification at least provides most farms and ranches the opportunity to sustain their sheep operation," said ASI Executive Director Peter Orwick. "The proposal of the department in April to triple monthly wages would have put the majority of sheep producing families out of business."

Former ASI President Clint Krebs of Oregon added that federal officials also greatly modified their proposal specifying ranches would be eligible to hire sheepherders under the H-2A program provision.

"We estimated 40% of the ranches that have hired sheepherders for decades would not have been eligible due to a proposed definition involving fencing where sheep graze," Krebs said. "We appreciate the department reviewing the hundreds of comments from ranch families regarding the type of lands their sheep graze, and the huge impacts the original proposal would have on the ranches and the entire sheep industry."

The Final Rule establishes specific standards for housing used by range workers, such as circumstances where heat must be provided. The rule also requires employers to provide adequate food, free of charge, and a minimum of 4.5 gallons per day of potable water to range workers.

The Final Rule has been posted by the department here: http://www.foreignlaborcert.doleta.gov/. It will become effective 30 days after the date of publication in the Federal Register which is expected Oct. 16.

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