Lawsuit alleges agency ignored wage-setting standards
By CAROL RYAN DUMAS
The U.S. Department of Labor is withholding implementation of increases in prevailing wages for foreign sheepherders in Arizona, Nevada, Washington, and Oregon pending the outcome of litigation.
DOL suspended implementation in order to facilitate full judicial consideration of the underlying issues in litigation, according to a Feb. 1 announcement by the agency.
The previous prevailing wages will stay in effect until further notice, the announcement stated.
The Western Range Association, along with the American Sheep Industry Association, Nevada Wool Growers Association and individual growers in Nevada and Arizona, filed a lawsuit Jan. 29 on a federal increase to H-2A sheepherders' wages.
The lawsuit was filed in federal court in Reno, Nev., with a hearing on the matter held Jan. 31.
The suit objects to the Department of Labor's new prevailing wage determination that doubled wages for H-2A sheepherders in two states and increased wages in two additional states.
The new wages, based on California's wages, were set at $1,422.52 a month (plus room and board) and went into effect Jan. 8. The lawsuit argues the wage adjustment is arbitrary and capricious on several counts.
Overnight, that adjustment raised wages in Arizona nearly 90 percent, up from $750 a month, and raised wages in Nevada nearly 78 percent, up from $800 a month, the lawsuit stated.
Producers would not be able to absorb the increase in labor costs and would suffer serious and irreparable harm and may be forced to liquidate herds and go out of business, the lawsuit states.
"It's going to put a lot of people in those states out of business," said Dennis Richins, executive director of Western Range Association, which works to secure foreign herders for its member producers in 11 western states.
The basis of the lawsuit against DOL officials is twofold, he said.
DOL said it was unable to get enough data from state wage surveys to determine the wage in Nevada and Arizona, so it tied herder wages in those states to California's minimum wage, saying those states were in the same farming district as California.
In addition, DOL didn't obtain any input from anybody before announcing the wage increase, he said.
The lawsuit alleges DOL ignored its own wage-setting standards in determining the Nevada and Arizona prevailing wage to be the same as California's statutory minimum wage.
In the absence of sufficient wage surveys, DOL could reply upon "adjacent or proximate" state wage surveys or USDA farm production regions. DOL did neither, the lawsuit states.
California's sheep herder wage is not a result of survey data and is not a prevailing wage survey of California's employers of non-H-2A, and DOL has never used any state's nonsurvey statutory rate to set wages in any other state, court documents state.
In addition, the decision was contrary to decades of DOL's own decision making, which grouped Nevada and Arizona with the mountain states to their east and northwest. Had DOL been consistent in its determination, the wages would have been based on Colorado's wage survey and a DOL-approved monthly wage of $750, court documents state.
In addition, DOL rules state DOL may consult with affected employers and worker representatives before making a determination.
"DOL did not consult with plaintiff employers, notwithstanding the fact it was imposing dramatic wage increases. ... Plaintiffs do not know whether DOL consulted with worker representatives," the lawsuit states.
DOL also tied Washington's and Oregon's herder wages to California's minimum wage, raising Washington's from $750 a month and Oregon's from $1,227.67 a month.
For now, all four states will operate at the previous wages until cross motions are filed and a briefing is scheduled, Richins said.