Foreign labor procedures undergo rulemaking process

Casper – “Mountain Plains Agricultural Service (MPAS) is an agent association that helps producers bring in foreign labor through the H-2A program,” stated Kelli Griffith, executive director of MPAS.

H-2A, she explained during the 2014 Wyoming Stock Growers Association Winter Roundup, is a visa program for foreign workers in production agriculture jobs. These positions are defined as seasonal or temporary, up to 10 months, and for the same season every year.

“There are a lot of government agencies involved and a lot of hoops to jump through, but it is a program that has worked for decades,” stated Griffith.

She explained that the Basque sheepherders who came into the United States and Nevada were a precursor to the current program.

“There is a lot of history with sheep, but what a lot of people aren’t aware of is the opportunity to bring in help for cattle, as well,” she said.

One position represented by MPAS, according to Griffith, is the open range livestock worker position. She noted that MPAS focuses on open range herding positions because they are subject to special procedures.

Special procedures

“These special procedures have been an informal guidance that has allowed employers of livestock workers to have some special rules,” stated Griffith.

She explained that livestock employers can offer a job that is on-call 24/7, pays a monthly wage and can house employees in mobile housing.

The MPAS website also quotes, “Because open range livestock worker applications are for a 10 month period, the three-year rule, as in the goat and sheepherder occupation, does not apply.”

The three-year rule allows for contracts to be renewed, extending a worker’s commitment for up to three years, after which the worker must remain outside of the U.S. for at least three months, the website explains.

The H-2A program involves several state workforce agencies, the Department of State, Department of Homeland Security and Department of Labor (DOL), which spearheads the program.

“DOL implements the foreign labor certification, so they get to determine who is approved to hire foreign workers,” she stated.

Rulemaking process

About three years ago, some workers and legal services decided to sue the DOL, which, despite the hurdles, led to good developments, she reported.

“For the first time ever, the H-2A special procedures will go up for a rule making process,” stated Griffith.

She noted that the proposed rule should be available to the public on March 1.

“Although these procedures have been looked out for by several very responsible congressional and industry members, they have never been set in stone and gone through the rule-making process,” she said.

Griffith recommended that producers speak to congressional members and industry advocacy groups to make sure that they are aware of what’s coming along with the rulemaking process.

Considerations

“It is important that we are prepared to look out for what we have. We have something that a lot of people don’t have access to,” Griffith said.

She explained that non-range workers using the H-2A program, such as fruit pickers and dairy workers, must be paid hourly or piece-rate wages. They cannot use the 24/7 work schedule without overtime pay.

“I don’t know if coyotes or wolves punch a time clock, but I’ve never met any that do, so the special procedures are an important piece for us,” she said.

She also noted that the wage-setting procedures have been working well for range employers, but changes in that process will be necessary in the new rules.

“We have had the same wage for over a decade, so we are looking at new wage methodologies,” Griffith said.

She added that a wage change is not necessarily wanted or needed, but it is important from a public relations standpoint.

Making comments

Griffith also discussed suggestions from MPAS to the DOL for revised job descriptions.

“In the current program we’re very limited to exactly what’s in the job description and contract,” she said.

The open livestock worker position was developed to allow for some more flexibility for job tasks, Griffith explained.

“That worker can be around sheep, cattle, goats or whatever the species may be and can also help with some irrigating and fencing,” she stated.

Along with the open range position, MPAS also represents sheepherder, sheep shearer and wool grader positions.

“We have some producers who have sheepherders and livestock workers on the same operation,” she said, noting that it can cause some conflict, due to differences in contract agreements.

 She reported that MPAS has done a lot of research and spoken with DOL about best and worst case scenarios. She added, DOL has taken the information, and decisions about the rules will be released in March.

Waiting for a rule

“We are trying to make sure that MPAS, as an organization, is able to disseminate information to interested groups as it becomes available,” stated Griffith.

She noted that the forecast of immigration reform brings up some unknowns.

“I realize the livestock worker position or sheepherder position isn’t something individual producers may be interested in, but right now it is our only legal labor supply,” she said.

Griffith encouraged producers to stay involved as the new H-2A rules and comment periods become available. 

Natasha Wheeler is the editor of the Wyoming Livestock Roundup and can be reached at Natasha@wylr.net