Foreign Shepherds Get a Small Break in the Courts

By David North, November 30, 2016

As befits the season, the most exploited of the foreign workers in the United States, the shepherds, won a round in the D.C. federal courts earlier this month.

As we described in an earlier blog post, these H-2A workers who watch their sheep around the clock, often in mountain pastures, were given a grudging wage increase last year by the U.S. Department of Labor. Their employers went to court to cut off even this minor increase and meanwhile lawyers for the workers, seeing the outline of the wage order to come, sued for a better deal.

Got that? A federal regulation was issued and both sides went to court to object, from different points of view, in two different legal processes.

This posting deals only with the workers' lawsuit; it carries a name that tells something about the rise of the Hispanic community in recent years. It is Hispanic Affairs Project v Thomas E. Perez (the secretary of Labor.)

While the community has scored some political breakthroughs — Perez, for example, is the second person with Spanish surname to hold that post — the plaintiffs' lawyers contended that the DOL was not providing anything like economic justice to these workers. The attorneys said that DOL had not used either recent or valid wage data to determine the appropriate wage for the shepherds (who are called sheepherders by the government). And since it had employed inappropriate data, it gave the workers (mostly from Mexico and Peru) a bad deal.

DOL, riding to the rescue of the largely prosperous and largely Anglo ranchers, argued that the case should be dismissed because no U.S. workers were among the plaintiffs; in other words, the Hispanic Affairs Project had no standing to sue. A whole lot of immigration lawsuits are dismissed on the matter of standing.

At first the presiding judge, the chief judge of the D.C. District Court, Beryl A. Howell, ruled for the government. The Hispanic Affairs Project lawyers then noticed that at least two of the plaintiff shepherds had secured green cards — making them U.S. workers in the eyes of the court — and so informed the court. Judge Howell then reversed her prior decision to dismiss and ruled that the case may move forward.

What happens next is, with one exception, not clear.

The exception: It will take a long time.