Employment Law Daily Challenge to policies allowing year-round, years-long employment of ‘temporary’ herders is revived on appeal
Tuesday, August 21, 2018

Challenge to policies allowing year-round, years-long employment of ‘temporary’ herders is revived on appeal

By Brandi O. Brown, J.D.

In the appeal of a dismissed suit brought by a shepherds’ advocacy organization against the Departments of Labor and Homeland Security, the D.C. Circuit has resurrected claims relating to the agency’s 364-day certification period for H-2A visas, as well as its pattern of routinely extending those “temporary” visas for repeated three-year periods. The organization plausibly showed that the agencies de facto policies regarding such authorizations were arbitrary, capricious, and contrary to law in violation of both the Administrative Procedure Act and the Immigration and Nationality Act. The organization also adequately challenged a 2015 rule categorizing herders as the type of temporary positions permitted by the visa program. But the organization’s challenge to the minimum wage required for herders was not revived (Hispanic Affairs Project v. Acosta, August 17, 2018, Millett, P.).

Year-round, three-year-long visas. “For all the pastoral images it may invoke,” the court intoned, “tending to a flock is no easy task.” And according to ranchers, it is one that few domestic workers will or can do. Thus, the industry has become almost entirely dependent on foreign labor, workers who come to the United States on H-2A visas. The DOL issues Temporary Employment Certifications to employers who establish a need, and then the DHS makes a final decision on whether to grant the employer’s H-2A petition and issue a visa. Such visas, however, are only supposed to be issued for temporary or seasonal worker needs, but “time and again,” the court noted, the agencies allow employers to employ herders on H-2A visas for work that is year-round, non-seasonal, and that lasts for up to three years at a time.

Challenge. According to the lawsuit brought by the Hispanic Affairs Project, a herders’ membership organization, and a handful of individual herders, the agencies’ 364-day certification period for H-2A visas is unconnected to the reality of such employment. Therefore, they challenged that certification period, as well as the agencies’ practice of routinely extending those visas.

Low wages. Minimum wages and working condition requirements for H-2A workers are also set by the Labor Department. Employers of open-range herders, however, were exempt from the minimum-wage requirement due to the position’s unique characteristics. In 2011 the DOL issued a guidance letter formalizing the exemption of those workers, although that letter was found invalid in an earlier decision by the court. The district court ruled that it could remain in effect while a new rule was properly promulgated through the notice-and-comment process. That new rule took effect in 2015 and laid out several regulations, including minimum wage standards, regulations that also applied to the open-range herders. In its district court challenge, the organization also contended that the minimum wage sets by the 2015 rule was unjustifiably low.

The district court dismissed claims related to the 2011 guidance letter and granted summary judgment on claims related to the agencies’ authorization of H-2A visas that were essentially “permanent.” The plaintiffs appealed.

Practice of extensions. On appeal, the D.C. Circuit held that the organization adequately raised a challenge to the DHS practice of automatic extensions. “At the heart” of the suit was DHS’s de facto policy of routinely extending H-2A visas for herders that led, in practice, to the temporary authorization lasting up to three years at a time, and then that three-year period being frequently repeated after brief, pro forma visits home. Indeed, the court below had found record evidence indicating that H-2A shepherds return many times, working as long as 20 years for a single rancher. However, it dismissed the claim against DHS because it believed the claim to be an attack on the regulations, rather than the department’s practice.

That belief, the appeals court explained, was “mistaken.” If the organization were able to prove its claims of routine employment terms exceeding three years, the department’s “policy and practice would contravene the plain text of its own regulations.” Such an unannounced departure is challengeable, and the district court erred in finding that it was not raised in the complaint or was otherwise barred.

“Temporary” need? The organization also adequately preserved its challenge to the Labor Department’s decision in the 2015 rule to classify herding as “temporary” employment. The organization argued that the regulatory scheme grants herders and the ranchers who employ them what is essentially a permanent work visa, rather than a temporary visa. The new regulation permitted the period of need identified on the application to be “364 calendar days,” which the organization argued is inconsistent with both the INA and the department’s own regulations, including 20 C.F.R. sec. 655.103(d). That regulation required that the actual “need to fill the position with a temporary worker *** last no longer than one year.” The ranchers’ actual need, the organization argued, clearly was not temporary.

Although the district court found that this claim was not exhausted because no objection was made to the agency rulemaking, the appeals court explained that such exhaustion was “not a license for agency passivity” and exhaustion was not required. Agencies are always under the burden of examining and justifying “key” assumptions in order to promulgate non-arbitrary and non-capricious rules. Thus, the appeals court explained, the Labor Department was required “to explain why sheep, goat, and free-range herding is the type of job for which employers have only a temporary, rather than continuing or long-term, need.” The department knew that, the court explained, based on its own language and analysis, as well as the comments it received. Its decision was “fair game for judicial review.”

However, the court held that the 2015 Rule’s minimum wage rate was not arbitrary, capricious, or unsupported. The agency examined the data that was before it, considered alternatives and comments, and gave reasoned explanations for its conclusions.

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