DOL Rule Protects Foreign Sheepherders

The U.S. Department of Labor has announced a Final Rule 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 rule brings the federal minimum wage of $7.25 an hour to these workers. The new rules affect 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. 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 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.