Farms and ranches that hire sheepherders from abroad using the H-2A visa will want to take note of the recent Tenth Circuit case Saenz Mencia v. Allred. Congress created the special visa category for sheepherders and goatherders because of the unique demands of the occupation, where employees work around the clock caring for flocks in the remote locations where the animals graze. This schedule makes hours difficult to calculate, so the regulations have set the minimum wage for H-2A sheepherders at $750 per month plus food and lodging. Their employers must pay for all visa fees and may not charge the employees for recruitment or travel expenses.
The Special Procedures that govern the provisions of H-2A sheepherder work state that the duties of a sheepherder include attending livestock while they graze, caring for them in various ways as the need arises, and doing other related farm work on “an incidental basis.” The regulation the Procedures are based on describes sheepherders as lacking “a reasonably regular workday or workweek,” and the Special Procedures themselves require sheepherders to be “on call for up to 24 hours per day, 7 days per week” on a “range or pasture.”
In this case, a Peruvian citizen who was hired under an H-2A sheepherding visa claimed that his pay was inadequate, arguing that the work he performed did not qualify as sheepherding and the monthly wage for H-2A ranch hands should apply instead of the wage for H-2A sheepherders. According to the record, Mr. Saenz did not work in a remote location, but rather in the immediate vicinity of the ranch headquarters, and was regularly monitored by his employers. These animals were also not grazing on a range or pasture; Mr. Saenz fed them hay. The plaintiff also did not work irregular hours that would be difficult to compute, but had a fairly regular schedule working eight to ten hours per day, in contrast to the 24/7 work of sheepherding. The court also found that Mr. Saenz did more than “incidental” work outside of the realm of sheepherding to qualify as an H-2A sheepherder, and was therefore an H-2A ranch hand under the regulations.
The court concluded by finding that the burden was on the employer to make sure that Mr. Saenz’s assigned duties were consistent with those of an H-2A sheepherder, and it was not the duty of the employee to complain about the nature of his work. The court found that the employer owed Mr. Saenz the higher minimum wage for H-2A ranch hands for all of his hours worked, even for the work he had done as a sheepherder.
The lesson to employers here is simple: be absolutely sure that you are only assigning your foreign employees work that is allowed by the conditions of their visa, and consult your immigration counsel if you are unsure of your company’s compliance!
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