RBC I In mid-April, the U.S. Department of Labor released a Notice of Proposed Rulemaking titled “Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock On the Open Range in the United States.”
The H-2A program, which brought in more than 65,000 temporary workers in 2012, allows foreign workers, often from South America, seasonal agricultural work in the country.
The proposed changes in the program present a large shift in the way employees are managed, and many local sheep and cattle producers who participate in the program are not happy.
“There’s no understanding from the Department of Labor about the production process,” said Bonnie Brown, executive director of the Colorado Wool Growers Association during a phone interview.
Arguably, the portion of the rule change with the greatest impact on producers is the increase in wages for H-2A workers. Workers in this program are paid on a monthly basis. Currently, these workers average between $750-$1,600 per month depending on the state of employment, with Oregon and California requiring the highest pay.
In addition, employers provide housing, food and other supplies.
The proposed rule change would triple the required salary with the new pay scale ranging from $2,125-$3,244 per month, again depending on the state. The increase in pay is to be phased in over a five-year period with employers expected to pay 60 percent of the full salary in 2016 and increase that rate by 10 percent each year until the full salary is achieved in 2020.
In Colorado, the monthly salary in 2020 would be $2,500.
The proposed rule change would also require a shift in how housing is provided for the workers. Currently, many H-2A workers stay in mobile housing units typically referred to as sheep camps. The new rules would allow the use of sheep camps to continue, but in limited situations.
According to the new rules, if sheep are located near headquarters and in a fenced area, the H-2A employee must be provided with permanent, fixed housing, instead of the traditional sheep camps.
However, local producer Anthony Theos said that the law fails to identify how close to headquarters is close enough to trigger the requirement for fixed housing.
“There’s so much gray area,” Theos said.
Brown also believes that the law is quite ambiguous and will wreak havoc on the livestock industry.
“There’s not an industry in America that can withstand having their wage base tripled,” Brown said.
On April 20, U.S. Sen. Cory Gardner, R-Colo., sent a letter to Labor Secretary Thomas Perez requesting that the comment period on the proposed changes be extended from 30 days to 90 days in order to give impacted businesses a chance to respond.
In his letter, Gardner stated, “If this proposed rule is finalized without amendment, many sheepherders in my state of Colorado will lose their businesses, some of which have been passed down in families for generations. The new wage requirements are especially onerous and deserve more time for comment.”
The Colorado Wool Growers Association also responded to the Department of Labor with a letter in late April. In the letter, association President Spence Rule said, “If the NPRM (Notice of Proposed Rulemaking) is adopted as published, it will collapse the Western range sheep industry. The foreign workers who voluntarily and enthusiastically take advantage of the H-2A program will no longer have legal jobs, not to mention the thousands of other jobs that will be lost as a result of these poorly crafted regulations.”
As for the objective sought by the change, the Department of Labor claims they are trying to protect U.S. and H-2A farm workers. However, Brown believes there is an ulterior motive.
“The Department of Labor is hoping that if they raise the wages, Americans will want the jobs. That’s not going to happen,” she said.
Kelli Griffith of Mountain Plains Agricultural Services, a firm that helps livestock producers navigate the process of bringing in foreign workers through the H-2A program, agrees with many livestock producers that the proposed rule changes will bring great harm to the livestock industry.
“Employers of herders and livestock workers will not have a workable rule to hire legal labor and will be forced to look for alternatives. The most likely alternative will be a reduction in size or be out of business,” Griffith said.
Because of the increased difficulty in bringing workers to the U.S., Griffith also believes that the H-2A workers will be left at a great disadvantage.
“…the herders themselves will lose opportunities to make a better life for themselves and their families,” Griffith said. “There have been herders that have worked for the same employer 5, 10, even 20 years.
“These workers have been able to put their children through law school, they own businesses and ranches in their home countries,” she said. “They have been able to do this while making it possible for businesses to operate in the U.S. and supporting U.S. jobs.”
Unless the request for an extension is granted, the comment period will end on May 15. Comments can be submitted via the Department of Labor’s website or through the American Sheep Industry Association’s Legislative Action Center at sheepusa.org.