Sheep producers hear from Department of Labor, Wage and Hour during conventionWritten by Saige Albert
Scottsdale, Ariz. – Foreign workers are often described as “essential” to the U.S. sheep industry for their role as herders on the West’s vast rangelands, and changes to the Department of Labor’s (DOL) H-2A Foreign Worker Program caused ripples throughout the industry. Though the herder provisions went into effect in mid-November 2015, many producers still have questions and concerns.
In an attempt to address some misconceptions, Brian Pasternak, DOL National director of operations, and Jim Kessler, Wage and Hour Branch chief, visited with producers during the American Sheep Industry Association Annual Meeting at the end of January 2016.
“We handle the H-2A program, but we also deal with H-2B and H-1B skilled worker programs,” Pasternak explained. “The H-2A rule is of interest to our Department, our Administration and the ranching community, and we have received some substantive, thoughtful comments about the proposed rule, which was published in April last year.”
Pasternak further noted that the comments not only expressed concerns, but they also offered practical solutions, many of which he said that DOL took under advisement.
“I think the final rule reflected a lot of compromises and a lot of input that came from industry,” he said.
Pasternak also added, however, that the DOL was required to address the concerns of worker advocates, as well.
“We had a very aggressive timeframe with this rule,” he said, noting that the rule is 114 pages long. “The sheep herding range production program is one to two percent of the total volume of H-2A workers. The other 99 percent of the regulations governing the program is 113 pages. The length of rules in this program speaks to the importance of the jobs within the industry.”
Program eligibility has been a concern for producers, and Pasternak explained that, historically, the program was operated through guidance.
“There weren’t clear definitions with respect to the livestock and range positions,” he said. “For us to demonstrate and then justify that these jobs are unique and don’t qualify for regular H-2A, requiring special procedures, we had to call out their unique features and put them in a framework.”
The framework utilizes four eligibility criteria to determine whether the job a rancher needs done is eligible.
“These have to be involved in the herding or production of livestock,” Pasternak explained. “They also have to involve work performed on the range for a majority of their time or more than 50 percent of the contract.”
In addition, workers have to be on call 24/7, and the nature of the work should be seasonal or temporary in nature.
“In setting out the criteria, we had to define terms, including livestock,” he said, also noting that job categories and other terms are included. “We don’t want ranchers to be pigeonholed or definitions that are too specific because each operation is different than the neighboring place.”
He also noted that to qualify, herding jobs must be differentiated from general ranch hand positions.
“Worker advocates did not see much need for regulating or providing for variances outside of the work on the range. Advocates feel that when on the ranch, workers should be paid by the hour,” Pasternak explained, adding that DOL determined that there was some necessary work off the range. “We preferred the need for some of the work to be off the range, but there are limitations on jobs that can be performed at the ranch.”
To qualify, Kessler emphasized that all four of the criteria must be met.
The requirements associated with housing are also integral in the H-2A program, and producers were very concerned about housing requirements.
“When we looked at comments, one of the things that came up was stationary structures,” Kessler said. “We didn’t want to exclude the users of the program because their housing was movable.”
As a result, the definition of mobile housing was removed, but Kessler emphasized that housing must be remote and isolated.
“We are still looking for housing to be on the range, remote and isolated,” he said.
Prompted by a producer question, Pasternak said that more than one worker could live in a single unit as long as there is a separate sleeping facility.
“The regulation, after input from industry, clarifies what a separate sleeping facility is,” he said. “A separate sleeping facility is a separate bunk, cot or mattress in the unit.”
Pasternak added, “Our goals with housing weren’t necessarily about the structures of the housing units but with dealing with the living conditions of workers.”
The issue of wages raised much concern across the sheep industry, and Pasternak explained that the wage structure proposed by the industry was largely adopted by DOL.
“We proposed a wage structure and got a lot of comments back from major users of the program,” he said. “This is an example of how the industry came forward, not with just complaints but with practical ways to find middle ground. We accepted that.”
Pasternak also noted that, as implementation continues, working together will be imperative, and he encouraged producers to contact DOL if they have questions.
He also noted that variances may be granted in specific situations, and if producers have questions or would like to request a variance, more information is available on the DOL website.
“We are trying to be flexible, but we have a balancing act to deal with,” Pasternak said. “If a producer has an experience that doesn’t sound right or state investigators understand a portion of the rule differently than the producer does, we encourage the producer to contact our ombudsman program to help resolve the issue.”