Shepherds Shafted by the Ninth Circuit

Court won’t change 2,000-year-old labor standards for H-2A herders

By David North on February 1, 2023

And there were in the same country shepherds abiding in the field, keeping watch over their flock by night.— Luke 2:8-14

You might think that the liberal Ninth Circuit would rule in favor of somewhat modernized labor standards for the shepherds of the western mountains, clearly the most abused of all the foreign workforces. You would be wrong.



These workers, virtually all H-2A aliens, who may not see another human being for weeks or months at a time, live in tents or trailers, are paid poorly but stay with their flocks 24/7/365 as they, in a medieval pattern, accompany the sheep from the lowland valleys in the winter to mountain passes in the summer and back again. It is an ancient form of agriculture that is sustained only because of the availability of foreign workers — without the aliens (often from Mexico or Mongolia) it simply would not exist.

The legal situation is complex, as it involves both federal and state (Nevada) courts. The Ninth Circuit, in a decision without explanation, sustained a district court decision denying the workers class status, necessary for a class-action lawsuit. (In these cases, if the judge does not accept the definition of a class the would-be class members lose.) A Law360 article stated:

In September, U.S. District Judge Robert C. Jones ruled that the possible class members worked in different areas of Nevada and might have worked different hours and there could have been differences between the class members.

In that decision, Judge Jones also said he could not grant the association's bid for summary judgment because the Nevada Supreme Court needs to clarify what constitutes work for the purposes of paying workers minimum wage under state law.

The Nevada court has an interesting task: How do you define work when there is a 24-hour on-the-job-presence required, but some of those hours are spent sleeping? That case is pending.

The H-2A program sets three-year tours of duty for the shepherds, with a three-month vacation period at the end of the three years, otherwise not much has changed since the Year of Our Lord 1. For more on this program, see here.