Shepherds Press Release 9/13/2016
Shepherds Proceed with Claims that the U.S. Government Illegally Created a Permanent Workforce of Foreign Shepherds and Arbitrarily Denies Foreign Shepherds Wages for All Hours They Work
Denver, September 13, 2016: Late Friday night, Chief Judge Howell in the federal district court in Washington, D.C., denied motions to dismiss claims brought by American and foreign shepherds against the U.S. Departments of Labor and Homeland Security. American shepherds allege that these agencies unilaterally created a permanent foreign shepherd workforce without the authorization of Congress, thereby undercutting shepherd wages. Foreign shepherds claim that they ought to be paid for all of the hours they work, rather than for an arbitrary number of hours far fewer than they actually work. Thousands of shepherds working for hundreds of ranchers in at least fifteen states can now have their rights adjudicated in Federal Court.
In response to the Government’s argument that no American worker was injured by regulations allowing foreign shepherds to be paid as little as $2-3 per hour, the Court noted, “[t]he Federal Defendants’ stubborn refusal to acknowledge the link between long-term underpaid foreign workers and depressed wages for American workers in the same industry defies common sense.” Hispanic Affairs Project,etal.v. Perez, 2016 U.S. Dist. LEXIS 122181, 2016 WL 4734350(D.D.C. Sept. 9, 2016).The Court also found that the shepherds had stated a claim under the Administrative Procedure Act by alleging that “the 2015 Rule determines the prevailing wage rates based on an unaudited review of employer-provided data that herders work on average only 48 hours per week, constituting irrational and arbitrary agency action, especially in light of similar problems with data-collection from employers DOL has had in administering the H-2A shepherd program in the past.” Id. (internal quotations omitted).
"The Department of Labor has created a regulatory scheme that ignores the on-the-ground reality of ranch work and is divorced from what Congress intended,” explained Dermot Lynch, Skadden Fellow at Towards Justice and counsel to the shepherds. “We are happy that the Court can now proceed to the merits of the shepherds claims against the government.”
“All of the shepherds, American and foreign, who are members of my organization, have been injured by the government’s actions,” said Ricardo Perez, Executive Director of the Hispanic Affairs Project, a plaintiff in the case. “I am proud to help protect all of these shepherds, who have suffered with absurdly low-wages and egregious working conditions for far too long.”