Department of Labor releases final H-2A rule

On Oct. 13, the Department of Labor (DOL) announced their Final Rule on the employment of foreign workers in jobs related to herding of livestock on the range, including the herding of sheep and goats.

“The regulation, the H-2A Herder Final Rule, implements a methodology to address wage stagnation and prevent adverse effects on U.S. workers,” said DOL in their release.

“The rule is better than we anticipated, but there are a lot of details to look at and sort through,” said Wyoming Wool Growers Association (WWGA) Executive Director Amy Hendrickson. “We are grateful that DOL has listened to the industry. They took industry comments to heart and really tried to shape the program to meet their goals but also to not put sheep producers out of business.”

The American Sheep Industry Association (ASI) commented that the work of ASI, Mountain Plains Agriculture Service and Western Range Association led to the submission of nearly 500 comments.

“The rule followed much of the sheep industry’s proposed methodology concerning two critical issues that arose in the original DOL proposal earlier this year – open range and wages,” ASI said.

Inside the rule

Among the concerns with the initial rule, the definition of “open range” was a big concern for sheep producers.

Sheep producer Shaun Sims of Evanston, who testified at a congressional hearing about the rule in August, commented, “They did away with the language about fencing, but they added ‘cultivated land.’ That might be problematic for producers in California or producers who bring their lambs and sheep into field in the fall.”

Former ASI President Clint Krebs of Oregon added that federal officials also greatly modified their proposal specifying ranches would be eligible to hire sheepherders under the H-2A program provision.

“We estimated 40 percent of the ranches that have hired sheepherders for decades would not have been eligible due to a proposed definition involving fencing where sheep graze,” Krebs said.

Wage impacts

The wage rate was also addressed in the final rule, and Hendrickson said, “The wage rate in the rule is very similar to what was proposed by the industry as a solution.”

DOL stated, “Under the final rule, employers must pay a wage that equals or exceeds the highest of a monthly pay rate, a collective bargaining agreement wage or an applicable minimum wage set by court or law. Under the rule, the monthly pay rate for all range occupations will use the federal minimum wage of $7.25 per hour and a 48-hour workweek.”

“The Department will implement a wage formula tied to the federal minimum wage similar to our recommendation, and while it is a significant cost increase that won’t fit all ranches, the modification at least provides most farms and ranches the opportunity to sustain their sheep operation,” said ASI Executive Director Peter Orwick. “The proposal of the department in April to triple monthly wages would have put the majority of sheep producing families out of business.”

The wage rate will be phased in over three years, with full implementation beginning in 2018.

“Although it isn’t as drastic as had been proposed, the wage will change operations,” Sims explained. “Some operations will not be able to afford labor at the new rates, but it is considerably better than what was proposed.”

Housing standards

The rule also establishes housing standards, including water requirements and circumstances where heat must be provided.

“Another highlight of the rule was a requirement of 4.5 gallons of water per man per day, which is not a big deal,” Sims said. “The enforcement will be important, though.”

For example, Sims posed that, if he hauls enough water to herders to last a week, and they have two gallons left on the day he delivers, will he be in violation of the rule?

“How they interpret the rule will be important and could set people up for non-compliance,” he continued.

Another aspect of concern is the requirement to provide cold weather clothing.

“I think there is a lot of interpretation that could be interpreted poorly for producers,” Sims said.

Delving into details

Hendrickson and Sims both noted that there are many aspects of the rule that are unclear, but as they comb through the details and as implementation begins, a clearer picture on the impacts will emerge.

“The devil is in the details,” Sims said. “The rule is not as bad as it could have been, but there will be significant impacts.”

“This rule will have an impact, and the wages will go up quite high in some cases,” Hendrickson adds, “but we haven’t fully analyzed the rule yet.”

The final rule will become effective 30 days after the date of publication in the Federal Register.

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