Pay Issue Could Hasten Sheep Industry's Demise


July 8, 2003

Washington State - A two-year legal battle over how much foreign sheepherders working in Washington should be paid could determine the fate of an industry already in decline.

The battle lines start at the edge of Max Fernandez's Centerville sheep ranch and stretch to the offices of the Western Range Association, a California-based organization that recruits the foreign workers.

The dispute centers on whether minimum-wage laws should apply to workers such as sheepherders, whose duties require them to live at their place of employment.

Fernandez, citing a federal program that allows the recruitment of foreign workers and has allowed the state to set shepherds' monthly pay, argues his workers are exempt from minimum-wage laws. He's done nothing wrong, he says, by paying shepherds $650 a month.

"I'm just following the law," Fernandez says. "If they want to change the law, they need to go to the Legislature."

But two Chilean shepherds who worked for Fernandez see it differently.

In early 2002, the two shepherds tending to Fernandez's flock abandoned their duties overnight, deciding they weren't being fairly paid. Then they found legal representation with Columbia Legal Services, a nonprofit Yakima agency.

The agency sued Fernandez and the association, claiming they had violated state and federal employment laws. Both shepherds have since returned to Chile.

But Ryan Edgley, attorney for Fernandez, says state minimum-wage requirements don't apply to workers whose duties require them to live at their place of employment.

The shepherds came to work on the Fernandez ranch through the federal H-2A program, which allows U.S. agriculture employers to recruit foreign workers for temporary or seasonal work.

Under the program, participating states set wages for various jobs, which are then approved on the federal level. In Washington, sheepherders earn $650 and receive free housing, food and medical insurance.

The salary translates to about $4 an hour for a full-time, 40-hour work week. Washington's minimum wage is $7.01 an hour.

Federal regulations require that H-2A employers base wages on the state or federal minimum wage, or an applicable prevailing hourly wage set by the state Department of Labor. Employers must pay the higher wage.

Washington state goes by the prevailing hourly wage, or the $650 monthly salary, says attorney Kevin Diaz of Columbia Legal Services. The figure is determined by the state through surveys, although spokespeople did not provide specifics on how that amount was determined.

Diaz argues that since shepherds spend a substantial amount of time engaged in active duties listening for wild animals, observing the herds they qualify for minimum-wage benefits.

Shepherds have to be on-call to protect the flocks 24 hours a day, seven days a week. They also spend extended periods of time with the flocks during grazing season, when workers live out of trailers in isolated mountains.

Because of the duties, the number of qualified and interested U.S. workers is limited, which is why H-2A was started to begin with.

Fourteen other states participate in the H-2A sheepherder program, and each state has different wages. California pays the most $1,050 a month.

Other Western states also pay more than Washington. North Dakota, for instance, pays $1,020 plus overtime; Oregon's monthly salary for shepherds is about $935; Utah pays $750.

In Washington, only two sheep ranches and about 10 sheepherders contracted through the H-2A program currently participate in the program.

"It's a dying industry," Fernandez says. "We are talking about eight or nine sheepherders."

Because judges in Superior Courts in Goldendale and Yakima have ruled against Columbia Legal Services, the case will be heard by the Third Circuit Court of Appeals in Spokane starting this month.

"If they prevail, nobody in the state of Washington will be able to have anybody living at their ranch anymore," Fernandez says.


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