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.
In an investigative report by the advocacy group Farmworker Justice, a herder from Peru, “Pedro,” recounted horrific labor violations—up to fourteen-hour days, earning just $750 per month, with a deduction for health insurance—and being stripped of his passport to keep him from escaping. After he became extremely ill and his boss denied him medical care, he escaped only by fleeing to the police and then connecting with a legal aid group.
“I knew that slavery had once taken place,” he testified. “But here in the United States, slavery is still being experienced…a form of modern-day slavery.”
A 2010 report on herders in Colorado depicted primitive housing conditions—-mobile campers or makeshift shelters. They lacked access to running water and electricity, using wood stoves for heat, with no refrigerator to store food. Eighty percent reported that their boss prohibited them from leaving their ranch, and nearly three-quarters said their boss “never” allowed them to engage in social activity.
One worker reported, “They don’t give me enough water to wash my clothes, and only wood for heat. The boss limits how much wood. I had to buy my own Coleman lamp.”
Although the remote location and mobility of the workers contribute to the problem, the H-2A regulations themselves actually invite such conditions. According to Public Citizen’s analysis of most recent version of the H-2A rules, last updated in 2011, the rules are fraught with regulatory exemptions that allow employers to force herders to be on call around the clock, without a day off, and earn just $750 per month, just a fraction of the regular minimum wage. The rules enabled employers to “offer only the most basic housing accommodation for herders living on the range. Those accommodations do not need to include electricity, running water, refrigeration or toilets.”
Julie Murray, a Public Citizen attorney working on the case, hopes that the appeals court decision leads to a public-oriented regulatory process that exposes how the wages and conditions for the US workforce is also damaged by the H-2A system. She tells The Nation via e-mail that through a fresh rule-making procedure, “we believe that once the public has an opportunity to weigh in—which it hasn’t had thus far—it will become clear to DOL that the current standards are insufficient to ensure that US workers are not adversely affected by the H-2A program.”
But the plight of the guestworkers also broaches crucial questions of human rights in migrant labor. The previous regulatory exemptions are what made it cruelly attractive to hire “imported” guestworkers, but the convergence between the interests of both “native” and foreign-born labor is that when conditions are improved and rights are equalized across the sector, all workers benefit from more sustainable jobs.
Today advocates say the system works for no one but the employers, and the herders suffer the most. Their disempowerment is underscored by the fact that regular farmworkers, who also come under the H-2A program, earn much higher wages, thanks to federal protections on minimum wage and “prevailing wage” rates, pegged to the local labor market. One possible reason for the different conditions is that workers in the fields have been organizing for generations, developing unions and campaigning publicly for equal rights and decent treatment. With solitude endemic to their job, herders face higher hurdles in marshalling that kind of collective action.
The hushed plains they roam may seem naturally tranquil, but there is no peace beneath workers’ enforced silence.
One worker put it tersely in Colorado report: “They only value animals, not work.”