In a pivotal decision about the misclassification of immigrant laborers who come to the United States to do agricultural work under the H-2A visa program, the Tenth Circuit has concluded that employees otherwise exempt from the requirement to pay overtime and a minimum wage under the Fair Labor Standards Act or FLSA might still have to be paid a minimum wage based on the work they’re doing, even if their visa category permitted a lower wage. Mencia v. Allred, No. 14-4047, 2015 WL 8599358 (10th Cir. Dec. 14, 2015).
The problem in the Mencia case was that while the worker’s visa classified him as a “sheepherder,” which at that time only required the employer to pay “$750 per month plus food and lodging,” he was actually doing other work that would have required payment of a minimum wage if properly classified.
The immigrant argued that the specific exemptions for sheepherders was created because the work of a real sheepherder was tending sheep out on the range, far from the where the employer could keep track of his hours. A ranch hand, on the other hand, works close to the employer, and there is no reason the employer can’t keep track of his hours (and thus pay him a minimum wage). The Court of Appeals agreed.
What is an H-2A Visa?
Workers on H-2A visas live and work far outside of the sight of most Americans.
The law permits employers to bring immigrants to the United States to fill temporary agricultural jobs. The employer first has to submit a request to the Department of Labor and receive a temporary labor certification.
The employer then submits a visa application to USCIS.
Once the employer’s visa request is approved, the workers outside the United States apply for the H-2A visa at a U.S. Embassy or Consulate abroad and then seek admission to the United States with their visa.
The immigrant must be from one of the countries eligible for the program. And the immigrant is admitted for the length of time the labor certification specified. With extensions, the immigrant can’t exceed three years in the United States as an H-2A.
Requirements for Sheepherders
The immigrant in the Mencia case was a Sheepherder, who entered the United States to work for part of the year each year to herd a farmer’s livestock. There are about 2,000 workers who enter the United States on H-2A visas each year to herd sheep or goats.
The “sheepherder” classification, as the name implies, means their work is limited to herding goats and sheep and are required to work out on the “range,” in remote locations, where the sheep graze. They live in housing provided by their employer and are on call 24 hours per day, 7 days a week, to tend to the sheep. The classification is not intended for workers who feed sheep at a feed lot.
Problems with the H-2A Program in General
There are legitimate criticisms of the H-2A program. Some argue that letting “guest workers” enter the United States for poverty wages permits employers to exploit the workers and that there might be U.S. workers willing to do the jobs if the employers were willing to pay a fair wage.
Combine that with the, the lack of potable water, the lack of access to food and medicine (or to report your employer for abuse), and the difficulty of the work, and some have accurately criticized the program as similar to slavery or indentured servitude.
Thus, when you hear a politician like Ben Carson advocate turning the 11 million undocumented immigrants in the United States into “guest workers,” this program is a good indication of what that would look like. It is not encouraging.
The new H-2A regulations requiring at least a minimum wage are a helpful step, but they still have an overtime problem (noted below), and minimum wage for such grueling work is hard to justify.
How Much Should H-2A Agricultural Workers Be Paid?
That’s not really what the Mencia case is about, but it’s a good place to start.
Under the law in place during the Mencia case, employers paid sheepherders and “ranch hands” differently, with sheepherders making much less money, supposedly because they’re doing different work. For example, here is the sample wage calculation from the DOL’s current guidance on sheepherders.
That guidance is out of date, since the DOL published new H-2A regulations in October, 2015, which increased the wage for Sheepherders from $750 per week to $7.25 per hour for 48 hours of work per week.
However, while that’s a huge difference, it still doesn’t appear the current wage is compliant with the Fair Labor Standards Act (which is where this new Tenth Circuit decision comes in). Sheepherders still aren’t required to be paid overtime under the FLSA, which is why misclassification still matters.
If the worker is actually a “ranch hand” classified as a sheepherder, even the current regulations say he can work up to 48 hours a week at minimum wage. And the nature of the sheepherder’s job is that he might be working more than 48 hours a week. And the regulations don’t require the employer to keep track of his hours, making it impossible to limit his work to 48 hours per week in real life.
Also some have criticized the new regulation as not going far enough; keeping the wage at $7.25 per hour makes it hard to attract U.S. workers to these jobs, which in turn makes it easy for employers to attract immigrants who may be less likely to report abuse. And no matter who is doing the work, $7.25 per hours is an incredibly low wage for such difficult work.
The Mencia case concerns the wage standard prior to the regulation change. But it still contains an important analysis of the misclassification of H-2A agricultural workers so they can be paid less and raises the question of whether H-2A sheepherders who do work that could be classified as “ranch hand” work need to be paid overtime if they work more than 40 hours per week.
What are the Minimum Wage and Overtime Requirements?
The federal government mandates a minimum wage of $7.25 per hour, which is also the wage H-2A sheepherders are now paid under the October, 2015 regulation.
Employees who are “principally engaged in the open range herding and livestock production” aren’t subject to the minimum wage and overtime requirements under the FLSA. Thus, the question before the Mencia court was whether the immigrant was really just a “sheepherder.”
If the FLSA applies, then then employees must be paid a minimum wage and those who work beyond 40 hours must be paid overtime, which requires payment of a wage that is 1.5 times the regular wage.
By classifying the immigrant in the Mencia as a “sheepherder,” the employer was able to pay him $750 per month (along with room and board) no matter how many hours he worked, which can come out to around $2 to $3 per hour.