Ranching Employers: Labor Department Tightening H-2A VISA Rules For Employing Range Workers


Ranching businesses that employ foreign workers with H-2A VISAs to herd sheep, goats, cattle or other range livestock (“Herders”) should begin preparing to comply with significant changes in the Labor Department regulations governing the recruitment and employment of Herders made in the new Labor Department Final Regulation on Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range (Final Rule).

The Final Rule available for review here significantly modifies the Labor Department’s existing rules on the employment of Herders under the H-2A VISA program in ways likely to affect the practices of virtually all ranching businesses that current employ such workers.  These changes include the consolidation of the currently separate set of rules for Herders working cattle versus those working other hooved livestock into a single rule, significant changes to the wage and other employment conditions that ranching businesses must meet when employing Herders, and streamlining certain procedures employers can use to apply for H-2A visas for Herders.

Ranching businesses and other employers that presently employ or contemplate employing Herders under the H-2A VISA program will want to consult with legal counsel for assistance in evaluating the effect of these rules on the employment of Herders to adjust practices and budgets as necessary to comply with these new requirements.

  • Single Rule For All Herding Jobs

As a starting point, the new Final Rule establishes a single regulation covering all H-2A VISA jobs related to the herding or production of livestock on the range. The Department currently administers separate procedures through two distinct Training and Employment Guidance Letters; one covering the herding and production of only sheep/goats and the other covering other livestock (e.g. cattle).  The Final Rule will apply to Herders working in jobs relating to the herding of all species of domestic hooved animals customarily raised on the range under a single, integrated rule.  It generally will cover jobs typically performed on call 24 hours per day, 7 days per week.  It will apply to work:

  • Performed on the range for the majority of workdays (more than 50 percent);
  • Generally requiring the use of range (including remote, non-mobile) housing, where the work sites are not near enough to the worker’s residence or ranch to permit the worker to reasonably return to a fixed housing location; and
  • Consisting entirely of duties and activities that are, or are closely and directly related to, herding and livestock production. (An enhanced definition includes examples of duties that are and are not closely and directly related.)

For this purpose, the Final Rule defines “range” as any area located away from the ranch headquarters where the herder is required to constantly attend to the livestock, evaluated based on the totality of the circumstances using a multi-factor test. Factors include whether the land is uncultivated, involves wide expanses, such as thousands of acres, and/or is located in remote, isolated areas; and whether the work typically requires range housing to enable the herder to constantly attend to the herd.

  • Wage Requirement Changes

The Final Rule also will change the rules for determining the wages that employers must pay Range Workers.  The Final Rule mandates that employers pay a wage, that equals or exceeds the highest of the monthly AEWR (described more below), collective bargaining agreement, or applicable minimum wage set by court or law (e.g., Federal, State or local minimum wage), free and clear at least twice monthly during the entire certified period of employment.

The new AEWR will be an amount set by the Labor Department on the effective date of the Final Rule or thirty days from its publication. The new AEWR will apply to all pending and future requests for prevailing wages, as well as all open certifications.  Relative to the new AEWR, the Final Rule establishes a new methodology for setting the monthly AEWR for all range occupations using the current Federal minimum wage ($7.25/hour) as the basis for an initial national monthly wage rate, calculated based on a 48-hour workweek. This initial AEWR for range occupations will be adjusted annually based on the Employment Cost Index for wages and salaries (ECI), beginning in 2017.  The Final Rule also specifies that to convert the hourly wage rate to a monthly wage rate, the Labor Department multiplies the hourly wage rate by 48 hours and 4.333 weeks.  Finally, the Final Rule provides for a a two-year transition phase in of the new AEWR starting with requiring 80 percent of the full wage from the effective date of the Final Rule through calendar year 2016, then 90 percent in calendar year 2017, and full implementation beginning in calendar year 2018.

The Department of Labor says these changes are needed to correct “wage stagnation” over the past 20 years.  In other words, employers should expect to see wage costs rise.

  • Stricter Rage Worker Housing & Other Employment Condition Requirements

The Final Rule also tightens the required housing and other employment conditions that ranchers must fulfill when employing Herders on the range.  The Labor Department says these changes are made to better protect U.S. workers doing essentially the same jobs as H-2A workers by preventing adverse effect on U.S. worker’s wages and working conditions.   For instance, the Final Rule:

  • Establishes specific standards for range housing used for range workers, identifies the circumstances in which heating equipment is required.  It also states that “range housing” includes housing that is remote, but need not be mobile and provides for SWA inspection at least every three years, while permitting SWAs to inspect more often.
  • Clarifies that the employer must disclose in the job order and provide range workers all tools, supplies, and equipment required by law, by the employer, or by the nature of the work to perform the duties assigned in the job offer safely and effectively, without charge or deposit charge. Additionally, the Final Rule continues the requirement that employers provide workers with an effective means of communicating with persons capable of responding to the worker’s needs in case of an emergency.
  • Requires employers to provide adequate food, free of charge, and adequate potable water to range workers. The Final Rule also quantifies the minimum amount of potable water the employer must provide (4.5 gallons per day for drinking and cooking purposes). Where potable water cannot be transported to the worker by motorized vehicle, the Final Rule allows the employer to rely on natural sources of water provided that it provides the worker with the means to test and render that water potable.
  • Streamlined Filing Requirements 

The Final Rule also streamlines the H-2A VISA application process by allowing employers to file H-2A applications directly with the Chicago National Processing Center (NPC) simultaneously with the H-2A Application for Temporary Employment Certification, Form ETA-9142A.  This change eliminates the current requirement that employers first file the H-2A application with the State Workforce Agency (SWA),  It also allows  and allowing agricultural associations of employers, who file as joint employers with one or more of their members in more than two contiguous states, to file a single “master application” and job order covering the workforce needs of each association-member. Identifies specific eligibility criteria for jobs covered by these procedures and provides that non-range duties and activities are governed by the general H-2A procedures and standards.

  • Changes To Recruitment Requirements

The Final Rule also modifies certain of the recruitment rules.  Some of the more notable recruitment rule changes are that the Final Rule:

  • Brings consistency to job order clearance by having job orders for all range occupations remain active until 50 percent of the work contract period has elapsed.
  • Requires that all range occupation jobs appear in the DOL’s national electronic repository until 50 percent of the work contract period for the job opportunity(ies) has elapsed, so U.S. workers may easily learn about these job openings and make themselves available for work to employers from across the nation.
  • Expands the waiver previously applied to range sheep and goat herding occupations to all range herding and livestock production occupations so that newspaper advertisement is not required.
  • Period of Need

The Final Rule specifies that employers hiring range workers for herding or production of sheep or goats may list a period of up to 364 days on the application and job order, consistent with longstanding practice.  In contrast, employers hiring range workers for herding or production of other livestock may list a maximum period of 10 months, consistent with longstanding practice.

These impending changes will require most employers of Range Workers to make significant adjustments in their practices as well as their budgets.  To help prepare for these changes and preserve valuable lead time to respond, employers of Range Workers should consult with qualified legal counsel for assistance in evaluating the implications of these new rules on their current practices and with planning to respond to these changes.

For Help With Investigations, Policy Updates Or Other Needs

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law extensively involved in health and other employee benefit and human resources policy and program design and administration representation and advocacy throughout her career, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick │Soefje PLLC, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience practicing at the forefront of employee benefits and human resources law.

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This entry was posted on Monday, October 19th, 2015 at 10:46 PM and is filed under employee, h-2A Visa, Immigration, visas. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.

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