Perhaps the worst case of exploitation of foreign workers, and the exclusion of American workers, comes with the job of sheepherding on western ranches, where near-medieval working conditions prevail, as we have noted in the past.
Earlier this month the DC Circuit Court of Appeals ruled in favor of the resident herders and did so in ringing tones:
The plaintiffs paint a portrait of agency capture, suggesting the Department has, without giving herders or their representatives an opportunity to be heard, administered the temporary worker visa program in a way that gives herding operations access to inexpensive foreign labor without protecting U.S. workers.
The case is entitled Mendoza (a green card sheepherder) V. Perez (the U.S. Secretary of Labor).
The plaintiffs, all one-time H-2A sheepherders and now green carder holders, had sued over the remarkably low wages and lousy working conditions that accompany most sheepherding jobs — in which the worker is left alone with the sheep in remote pastures for weeks at a time, on call 24 hours a day. The plaintiffs said that they would be willing to go to work in the industry again if the wages and working conditions were improved.
Currently all, or virtually all, of this work is done by H-2A foreign workers. The last time I looked, the pay in most states was $750 a month plus room and board. "Room" was often a tent or maybe a trailer on a wind-swept mountain pasture.
Rather than trying to defend the wages and working conditions directly, the industry's lawyers (intervenors in the case) had argued that the particular kind of regulation involved, a Department of Labor document, "Training and Employment Guidance Letter", was not subject to court review and, besides, the plaintiffs really were not active job-seekers. The district court agreed, but the three circuit judges unanimously rejected the finding. In addition, the trio granted summary judgment to the workers and told the district court (in a remand) to craft a remedy to the wage and working conditions problems.
The workers' case was argued by Julia Murray of the Public Citizen Litigation Group, a Ralph Nader organization; her allies included the Colorado Legal Services (Migrant Division), and Utah Legal Services. (Disclosure: one of her lawyer allies was Edward Tuddenham, long an advocate for farm workers; he was the first lawyer to enlist me as an expert witness in a federal court case.)
Presumably it will take a year or so for the lower court to order new and more appropriate rules for the industry, but it is heartening to know that this is under way.