DEPARTMENT OF LABOR ISSUES PROPOSED RULES FOR H-2A HERDERS
April 23, 2015
DOL changes ‘Special Procedures’ that have served the industry well for decades.
DENVER, Colo. – Livestock producers in the western United States were dealt a blow last week when the U.S. Department of Labor (DOL) issued a Federal Register notice proposing significant changes to regulations governing the employment of non-immigrant H-2A workers as sheepherders, goat herders and for the production of livestock on the open range.
A 2014 court order directed the DOL to engage in a notice-and-comment rulemaking to formalize special procedure guidance that has governed the H-2A sheep and livestock herding occupations for decades. The H-2A program was instituted in the 1950’s and has been used successfully ever since.
The proposed changes issued by the department include definitions that do not accurately reflect the unique characteristics of the industry, inadequate job description parameters and an alarming wage methodology that will triple labor costs and impose additional expenses on employers.
“It is highly unlikely that sheep producers could absorb the proposed extra costs and many, if not all, of them will be forced out of business, meaning the end to family farms and the loss of thousands of U.S. jobs throughout the American West,” says Peter Orwick, executive director for the American Sheep Industry Association (ASI).
“The court order directed the department to simply offer the special procedure guidance for public comment, not to change the substance,” comments Kelli Griffith, executive director of Mountain Plains Agriculture Service. “Yet, the DOL proposed rule makes substantial changes that will exclude many current operators from utilizing the program and will result in an untold number of livestock producers being forced out of business.”
“The proposed rule changes a successful system that has been used for years,” adds Amy Hendrickson, executive director for the Wyoming Wool Growers Association. “We are talking about unique circumstances – a job that is performed on the range where there are no time clocks to punch. Work occurs at different times of the day, for a few hours at a time. The herders are paid a monthly salary at a rate set by the applicable state-workforce agencies.”
Current wage rates for H‐2A herders vary by state. In addition to wages, employers also provide food, housing, clothing, supplies and all travel and visa expenses. The proposed changes would triple most of these wages while employers continue to provide food, housing, clothing, supplies and all travel and visa expenses. A 5-year “phase in” period is proposed for the new wage levels with employers paying 60 percent of the new rate in 2016, increasing by 10 percent each year until employers would pay the full rate in 2020 and beyond.
“More than 40 percent of all sheep in the United States are herded by H-2A workers,” states Orwick. “This alarming proposal not only threatens the existence of hundreds of sheep operations, it also jeopardizes the survival of many lamb and wool businesses.”
The DOL acknowledges that its proposal “will have a significant economic impact on a substantial number of small entities” but seems to disregard this economic impact on the businesses that supply those employers or process their products. Studies have shown that each H-2A herder position creates eight U.S. full-time jobs. The loss of each H-2A position will mean the loss of those jobs, largely in small western towns.
Comments to this proposed rule must be submitted on or before May 15. The sheep and livestock industries are working to provide a consistent and powerful message regarding the impact of these substantial changes. Further details are available at the Legislative Action Center on www.sheepusa.org .
ASI is an equal opportunity employer. It is the national trade organization supported by 45 state sheep associations, benefiting the interests of more than 79,000 sheep producers.