Willie Nelson sings, “Mamas, don’t let your babies grow up to be cowboys,” but apparently, Willie doesn’t know the half of it. Attorneys from Public Citizen claim the U.S. government illegally exempted cow and sheep herders from labor rules, allowing substandard wages and poor housing conditions.
The attorneys will argue before the U.S. Court of Appeals for the District of Columbia Circuit on Feb. 25 to challenge the validity of Department of Labor (DOL) rules that allow employers in the sheep and cattle herding industry to pay herders far less than other agricultural workers and to offer them substandard housing and other work 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, 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. DOL’s rules permit herders to be on call 24 hours a day, 7 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 DOL’s rules. The workers maintain that DOL’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 DOL violated the law when it issued the rules.
“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 DOL has permitted in the herding industry.”
The case is Zacarias Mendoza v. Perez, No. 13-5118 (D.C. Cir.).
