Department of Labor releases foreign worker rules

On April 15, a Notice of Proposed Rulemaking (NPRM) was issued in the Federal Register making proposed changes to the regulations governing employment of non-immigrant workers through the H-2A program. 

The American Sheep Industry Association (ASI) says, “The crux of the proposed rule centers around the special procedures – from mobile housing to monthly wages and year-round job duties. The Department of Labor (DOL) is asking for comments on the amount of time herders spend on the open range, a definition of open range, the time spent at the ranch headquarters and a description of non-herding ‘incidental’ job duties.”

“With more than 40 percent of U.S. sheep grazing on federal and state lands in remote areas where workers must be with the sheep at all times to move them and protect them from predators, it is critical to the future of the sheep industry that producers from across the country submit comments to the DOL regarding this proposed rule,” stresses Peter Orwick, ASI executive director. “The NPRM is nothing short of a disaster.”

Wage changes

While there are some positive outcomes in the rule, Wyoming Wool Growers Association Executive Director Amy Hendrickson says, “There are a couple of things that are problematic.”

Hendrickson says, “The most problematic portion of this rule is wage. They doubled and tripled the wage.”

She notes that the increases could push livestock owners out of business.  

ASI notes, “While retaining monthly wages, the formula to be used is projected to immediately double wages and eventually triple them.”

Current wage rates for workers employed under the H-2A program range from $750 to $1,600 per month, depending on the state. Wages don’t include free food, housing, clothing or supplies. 

“The NPRM would more than triple most of these wages to between $2,125 and $3,244 per month, again not including housing, food, clothing or supplies,” ASI added. “The NPRM proposes to ‘phase in’ the new wage levels over five years with employees paying 60 percent of the new rate in 2015, increasing 10 percent each year until paying the full rate for 2020 and beyond.”
ASI called these wage increases the “most egregious changes in the NPRM.”

“The wage rates proposed in DOL’s new NPRM for open-range herding and livestock production workers has no connection to the market realities for the industry,” ASI emphasizes. “By arbitrarily and outrageously inflating wage costs for employers, DOL will inevitably put these ranches out of business – many within the next year and the rest in short order after that.”

Living requirements

“The proposal retains mobile housing, as well as year-long job orders for sheepherders, which are critical,” comments ASI. “The proposed rule also increases the requirements for providing water to herders, places additional limits on the use of camps and prohibits deductions or wage offsets for food and housing.”

Hendrickson explains, “While they keep the mobile housing, the definitions of open range and livestock herders are problematic.”

In the NPRM, DOL claims that they have received complaints concerning housing conditions, but the lack of information based on the cases and whether charges were upheld is concerning, says ASI. 

Though DOL noted several cases were litigated, ASI mentions, “Of those ‘several cases’ only three are identified and only one involved a final court decision.”

“For each case, the charges were brought based on already existing regulations to protect these workers, suggesting that the existing regulations already work,” they continue.

Impacts

ASI also notes that DOL acknowledges their rule-making effort “will have a significant economic impact on a substantial number of small entities.”

“The impact on employers will be deadly, but the NPRM does not consider the economic impact on the businesses that supply those employers or process their products,” ASI says. “Each H-2A open-range herder position creates eight U.S. full-time jobs, and the loss of each H-2A position will mean the loss of those jobs.”

Comments

The American Sheep Industry Association (ASI) is working with Mountain Plains Agriculture Service and Western Range Association to respond to the proposed changes.

Hendrickson mentions, “We have a 30-day comment period, and we are working hard to get an extension.”

Orwick notes, “ASI will supply general talking points, yet it will be essential for sheep producers to relay the impact of this change on their own operation – whether as an H-2A employer or as a producer concerned for the infrastructure of the sheep business if the proposal forces a large share of sheep operations out of business.”

Visit sheepusa.org for more information.

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at saige@wylr.net.