The life of a cowboy used to be the stuff of Hollywood heroism: ranging freely over rolling plains in pastoral solitude. These days, home on the range is pretty much a sweatshop without walls. But there’s hope on the horizon: last week, a federal court struck down labor rules that have long kept immigrant herders mired in a stone-age regulatory regime.
Under the H-2A visa program for agricultural labor, the government invites hundreds of “guestworkers” each year from Peru, Nepal and other countries for seasonal livestock jobs. Similar to the H-2A migrant laborers who harvest crops, these workers form part of the country’s huge temporary migrant labor force, denied the full legal rights and labor protections afforded to regular “native” workers. They are relegated to specific low-wage agriculture jobs, which supposedly could not otherwise by filled by US-based workers. And in sharp contrast to the cowboy of yore, today’s Western herders typically endure long periods of isolation while living in destitution in brutal environments. Abuses are common, as labor rules are notoriously weak and enforcement even weaker.
Last week, however, the US Court of Appeals for the District of Columbia Circuit invalidated Labor Department rules that exempt herder employers from key labor protections, including wage-and-hour rules and requirements for workers’ housing conditions. The lawsuit was filed in 2011 by a group of US-based herders who argued that the lax federal regulations—with exemptions granted supposedly in response to the market and industry needs—had driven down working conditions for not just immigrants but US workers as well. Since the exemptions undermined their prospects in the labor market, they argued, the rules violated the visa system’s ostensible purpose of filling workforce gaps but not directly displacing native US workers. The court ruled that the Department of Labor had violated the Administrative Procedure Act, which governs the federal rule-making process, by quietly changing the rules without holding a mandatory public comment period. The case will be remanded to the lower court “to determine whether to vacate the rules immediately or leave all or a portion of them in place while the DoL undertakes a new rule-making,” according to the announcement posted by Public Citizen, which litigated the suit along with Colorado Legal Services and Utah Legal Services. Hinged on a bureaucratic dispute within a broader labor struggle, the case pitted farmworker advocates against both federal authorities and livestock trade groups, which argued that despite granting huge exemptions for migrant herders, the rules did not warrant a full public vetting process.
It is unclear whether the ruling will spur major reforms to the cowboy rules, but any change would help rein in the current lawlessness. The workers are often recruited from their home countries into a system of virtual indenture, going deep into debt to secure US jobs. The program chains them to a single employer, leaving them extremely vulnerable to abuse—and to retaliation if they try to assert their rights.