Group attacks H-2A exemption; growers point to shortage of domestic workers

By DAN WHEAT

Capital Press

A farmworker advocacy group wants to end the federal H-2A guestworker program for sheepherders, a move that threatens the U.S. sheep industry, a representative of the Western Range Association says.

Washington, D.C.-based Farmworker Justice has targeted the sheep industry's H-2A exemption, which allows U.S. sheep ranchers to hire year-round guestworkers from abroad.

If the exemption is terminated, hundreds of sheep ranchers around the West face an uncertain future, said Larry Williams, an attorney for the Western Range Association.

"We've had a successful program. It has allowed the sheep industry to survive since World War II, which was about the time the domestic workforce dried up," Williams said.

"It's a tough job, lonely hours in rural America. It's not a job U.S. workers want to perform," he said.

Workers once came from the Basque region of Spain but now predominately come from Peru, he said.

Farmworker Justice last fall issued a 44-page report titled, "No Way To Treat A Guest -- Why the H-2A Agricultural Visa Program Fails U.S. and Foreign Workers." It recommends reforms to H-2A, including an end to the exemption for sheepherders. It also says the program should be used only for temporary and seasonal work.

H-2A should not be allowed for sheepherders since they are employed year-round, Bruce Goldstein, president of Farmworker Justice, said in an interview. But short of eliminating the program for sheepherding, all H-2A rules should apply, including those regarding wages, he said.

The advocacy group, an affiliate of the National Council of La Raza, which calls itself the largest "constituency-based Hispanic civil rights organization," also doesn't like plans for using more H-2A guestworkers in other types of farming, such as in the Northwest tree fruit industry, but does not actively oppose it, Goldstein said.

The organization believes H-2A is not the solution for America's agricultural labor needs and wants Congress to pass an earned legalization program for undocumented farmworkers leading to legal work status and citizenship, Goldstein said.

Farmworker Justice's involvement in lawsuits over the use of H-2A in sheepherding in Washington state and elsewhere suggests the group is using the courts to achieve its goal of ending H-2A sheepherding, said Scott Dilley, a public policy analyst at the Washington Farm Bureau.

Farmworker Justice's mission statement says that it engages in litigation, administrative and legislative advocacy, support for union organizing and other means "to empower migrant and seasonal farmworkers to improve their living and working conditions, immigration status, health, occupational safety and access to justice."

However, Goldstein said a lawsuit against Max Fernandez, a Centerville, Wash., sheep rancher, is intended to enforce H-2A rules, not end the program. Farmworker Justice is a party to that lawsuit.

While interested in a similar lawsuit against Allred Livestock in Utah and one against the U.S. Department of Labor regarding the special procedures for sheepherders, Farmworker Justice is not a party to those suits, said Weeun Wang, an attorney for the organization.

However, Farmworker Justice does monitor those cases, Goldstein said.

Williams, the attorney for the Western Range Association in Salt Lake City, said he thinks Farmworker Justice also stays in communication and assists in the Labor Department case, which it is trying to use to nullify the special H-2A procedures for sheepherding. If successful those cases could make it impossible for sheepherders to use the H-2A program, he said.

The association is a joint employer with its 220 sheep-rancher members for 900 H-2A sheepherders around the West. Mountain Plains Agricultural Service in Casper, Wyo., is an agent that helps in the hiring of about 500 H-2A sheepherders, and individual ranchers bring in about 100 sheepherders, Williams said.

The lawsuit against the labor department alleges it changed the special procedures in 2010 without allowing public comment, Williams said. Some of the same H-2A sheepherders are plaintiffs in the state cases and the Labor Department case, he said.

The association is an intervener in the Labor Department case and a co-defendant in the Utah and Washington state cases.

In its report, Farmworker Justice states, "Guestworker programs drive down wages and working conditions of U.S. workers and deprive foreign workers of economic bargaining power and the opportunity to gain political representation."

Further, it says, H-2A sheepherders work 11- to 14-hour days, seven days a week and are on call around the clock for $750 a month, which is considered the prevailing wage.

That's "ludicrously low," Goldstein said. Housing and food is often inadequate, he said. The report quotes a Colorado sheepherder likening the work to slavery.

"That's ridiculous," Williams said. Workers come knowing the work is remote and having herded sheep in remote areas of their own countries, he said. They can quit and return home anytime they want, he said.

The $750 a month is not low because sheepherders do not work 11 to 14 hours a day, Williams said.

They are on call 24 hours a day and the job is to protect the sheep, move them to grazing, water and bed them down, he said.

"There is a lot of downtime when the sheepherder doesn't have much to do. During lambing season, days are longer," he said.

In addition to $750 a month, the sheepherder gets room and board and paid vacation time, which is considered by the Labor Department, with state input, in setting the prevailing wage, Williams said.

Even with room and board, sheepherders should at least make the normal H-2A minimum wage based on average field and livestock worker pay in a region as determined by USDA, Goldstein said.

The H-2A rate in Washington and Oregon is $10.92 per hour in 2012 and at 40-hour weeks and four weeks per month would be $1,700 per month, Goldstein argued. He said the prevailing wage rate for sheepherders in California is $1,422 per month.

Williams said housing is inspected annually by the states and the Labor Department requires state and rancher certification that it is adequate.

"One of the complaints typical of herders who have absconded (left work without permission) is that they didn't get fed enough," Williams said. "We go out and interview the rancher and the herder and it amounts to they (the herder) didn't like the type of food but didn't tell anyone about it."

"Every program has its problems," Williams said, "but in the grand scheme of things this is a program that works."

Online

Farmworker Justice: fwjustice.org

Sheep Industry News: sheepindustrynews.org