Sheep producers request reconsideration of H-2A rule changes

“I write to respectfully request the Department of Labor reconsider several of the recent changes it made to Special Procedures for the H-2A Program. Although there are some positive changes, which are well intentioned, there are several that will have serious adverse impacts on H-2A employers. Specifically, I am concerned that the Department of Labor continues to make these changes with little or no input from stakeholders and offers little clarification as to how the guidance will be enforced,” says Wyoming Senator Mike Enzi in a Nov. 14 letter to U.S. Secretary of Labor Hilda L. Solis.
    Enzi was speaking of H-2A, the program that allows foreign workers to come to the United States as ag workers. It’s the H-2A program that brings most of Wyoming’s sheepherders to the state, and recently the U.S. Department of Labor made changes and started enforcing them without public notice before or during the process.
    “The biggest problem is that the Department of Labor issued new regulations regarding H-2A workers and didn’t take them out for public comment, they just issued them,” says Wyoming Wool Growers Executive Vice President Bryce Reece. “Then they went out and immediately started applying fines to people based on the new regulations on which they never took comment.”
    “The guidance issued deviates significantly from past interpretations of employment guidelines, was written devoid of stakeholder input and causes several significant challenges for the employers in the open range livestock industry,” writes Enzi.
    In addition, Reece says the agency is issuing violations and fines without consistency.
    “There may be two producers doing the same thing, and one gets a $15,000 or $20,000 fine, and the other gets nothing, so we’ve got this inconsistency and our folks are in an uproar because they don’t know what they’re supposed to do,” says Reece.
    In addition, some time ago there were special procedures in H-2A that were issued for sheepherders because of the nature of their work.
    “The Department of Labor is flat ignoring the special procedures,” says Reece. “They’re doing whatever they want, and they’re certainly not following what we’ve been operating by for 20 years.”
    One of the rule changes has to do with water supply for sheepherders out on the range.
    “Some of the herders choose in the wintertime to melt snow rather than pack water around and keep it from freezing,” says Reece. “It’s easier to get a scoop of snow in their pot, but the Department of Labor said that because nobody regulates snow water, and there are no standards, then that’s a violation.”
    Another change to the rules has to do with housing two men in one sheep camp.
    “Most of the camps have a trundle bed that pulls out, so there are two beds, but they said that’s not good enough, so producers have been fined for that,” explains Reece. “A lot of those guys want to stay in the same camp, and this is one of the rules where the agency was inconsistent – one producer got nailed, while another who had the same setup wasn’t even mentioned.”
    Of the housing concern, Enzi writes, “Although several of the changes create significant challenges, those concerning sleeping units and variances are creating one of the most alarming negative impacts on livestock producers. Guidelines concerning the use of mobile housing for open range occupations have remained unchanged for 22 years. A separate sleeping unit has been understood to be a bedroll/sleeping bag, bed, cot or bunk. However, the latest TEGL (Training and Employment Guidance letters) references the term ‘housed’ in regard to sleeping unit and adds a three-day consecutive limitation for employees sharing a mobile housing unit on the range, such as a sheepwagon. This seems to imply that a separate sleeping unit is to include a separate ‘housing unit.’ Not only is the guideline inconsistent with previous standards, but when interpreted strictly proves impractical for many employers. The resources necessary to move and secure multiple housing units in remote areas of range would not only hinder herding operations, but could also prove to be dangerous in adverse weather conditions or during the shorter hours of daylight associated with the winter months.”
    As another example, Reece says the Department of Labor has decided stationary housing, like at lambing time, has to be 500 feet from a livestock holding facility.
    “Most sheep producers park the sheep camps next to the lambing barn so the workers don’t have to walk back and forth through the dark or the snow and cold,” says Reece. “In one case, the producer’s house is within that 500 feet. All these producers are trying to do is to make it as accommodating as possible for their workers, and a lot of times they’ll put a sheep camp inside, if the lambing barn’s big enough, so they’re right there.”
    Testifying for worker conditions, WWGA past president Gene Hardy says, “The people who use sheepherders treat them very well and try to keep them comfortable, satisfied and fed and sheltered.”
    Of what else might be regulated, Reece says, “We really don’t know what else is out there, because they’re making it up as we go along. They show up for a random inspection and say we can’t do that.”
    Regarding Enzi’s letter, Reece says, “The intent is to take those special procedures and codify them so the Department of Labor can’t just choose not to follow them. He’s trying to get some certainty for us so we know what the rules are and so we can follow them.”
    Reece says that WWGA and other industry organizations are talking to attorneys, though they’re hopeful they can get the Department of Labor to pull the rules back and go through the public process correctly.
    “If they don’t do that, we either have to have help from Congress or we’ll have to sue them in court. Obviously, for some groups court is their first option, but it’s always our last option,” says Reece.
    In the meanwhile, the producer fines have been put on hold until they go through the appeal process at the Department of Labor, and Senator Enzi awaits a response to his letter.
    Christy Martinez is managing editor of the Wyoming Livestock Roundup and can be reached at christy@wylr.net.