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Suffering in the Pastures of Plenty: Experiences of H-2A Sheepherders in California’s Central Valley
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Suffering in the Pastures of Plenty:
Experiences of
H-2A Sheepherders
in California's Central Valley
An Issue Paper of
Central California Legal Services
March 15, 2000
Chris A. Schneider
Diane Thue Vasquez
Maria Elena Martinez Gutierrez
Michael J. Kanz
Central California Legal Services
2014 Tulare Suite 600
Fresno, CA. 93721
(559) 441-1611 Fax (559) 441-7215
I.
INTRODUCTION
In Central California, hundreds of legal, temporary, non-immigrant sheepherders subsist
in solitude, virtually invisible to anyone not working in the sheep industry. Someone driving
through the valley during the winter, or through the mountains or deserts at other times of the
year, may catch a glimpse of a flock of sheep and perhaps see a shepherd. They may have no way
of knowing about the solitary life of the herder tending the sheep, or of his earnings of less than
one dollar per hour. For at least the past ten years, sheepherders have reported poor working
conditions, treatment, and wages. 1
Sheepherders are required to be at their work sites twenty four hours per day, seven days
per week, 365 days per year. Part of the year they work and live on the valley floor. During the
rest of the year they tend sheep in the mountains and deserts. Living alone, they have no contact
with other humans for days or weeks. They live in small, dilapidated, one room trailers, called
sheep camps, or tents. Most trailers have no form of heating or air conditioning. They become
unbearably hot in the summer and intolerably cold during the winter. There are no bathing
facilities. There is no running water. No field toilets are provided. Instead, employers provide
workers with a shovel to bury their excrement. Sometimes, there is not even a shovel. Many tell
of employer prohibitions of speaking to others or of having visitors. Others report that their
employers will not allow them to have radios, newspapers, books or magazines.
For most, all communication and contact with the outside world is controlled by the
I Scott Forter, Sheepherders Detail Life of Hardship, Allege Mistreatment, Bakersfield
Californian, July 17, 1990 at A8; Barry Ginsbarg, Visiting Peruvian Politician Wants to Help
Sheepherders, Bakersfield Californian, Feb. 5, 1991, at A7; Pamela J. Podger, Herders Say They
Face Exploitation, Fresno Bee, Nov. 11, 1991, at Al.
1
employer. Phones are non-existent at the sheep camps--even in the cellular age. Employers deny
them access to any form of transportation. Workers must depend upon the employer to: send or
deliver mail; bring food, drinking water and provisions; arrange for a doctor's appointment if they
become ill or are injured on the job; or go to town to place a phone call.
Workers state that requests for medical attention often go unheeded. Others recount
stories of food or water not being delivered in a timely manner, of having to drink canal water,
and of being sent by the employer to steal fruits and vegetables from the nearby orchards for their
own consumption. Workers report threats, beatings and firings for complaining about their
treatment and conditions.
State and federal governmental officials ignore the sheepherders' complaints and their
employers deny their claims.² Ranchers and their trade associations, including the Western Range
Association (WRA), traditionally claim that: (1) the H-2A Program is fair to sheepherders:3 (2)
the work is easy and workers are merely on call like a fireman:⁴ (3) sheepherders make enough to
send money home, build homes, and start businesses that are completely paid for;5 (4)
²Scott Forter, Rancher Disputes Charge From Fired Sheepherder, Bakersfield
Californian, July 20, 1990; Scott Forter, Herders Denied Minimum Wage, Bakersfield California,
Dec. 22, 1990; Carl Nolte, An Odd Little State Hearing On the Rights of Shepherds, S.F. Chron.,
Dec. 22, 1990, at A4; Roy Patrick, Rejects Herders' Petition, Delano Record, Sept. 25, 1990, at
A1.
³See Pamela J. Podger, Herders Say They Face Exploitation, Fresno Bee, Nov. 11, 1991,
at A1 (statement by Western Range Association executive director, Larry Garro).
⁴See Ben Elgorriage, Sheep Producer Responds to Article, Fresno Bee, Nov. 22, 1991
(Letters to the Editor).
5 Id.
2
mistreatment is an exception and claims of bad living conditions are overstated;6 and (5) workers
"are provided with good living conditions."
Central California Legal Services (CCLS) conducted a survey which produced a broad
picture of the lives of sheepherders working in the Central Valley. The survey questions elicited
specific information concerning hours and conditions of work, living conditions, availability of
fresh food and water, availability of health care, amount of control exerted by the ranchers,
amount of outside contact, and amount of contact with government officials. Also included were
questions regarding contracts, wages, and withholding. In particular, CCLS sought answers to
the following questions:
What are the working conditions, including hours of work and wages?
What are the living conditions?
Are sheepherders aware of their rights?
What happens to injured workers?
Do sheepherders have opportunities to effectively voice complaints to employers
or others?
Do employers exercise over the sheepherders' lives?
How do sheepherders view their treatment by their employers?
What are the best experiences of the sheepherders?
⁶See Barry Ginsbarg, Visiting Peruvian Politician Wants to Help Sheepherders,
Bakersfield Californian, Feb. 5, 1991, at A7 (Western Range Association Executive
Director, Larry Garro).
Scott Forter, Sheepherders Detail Life of Hardship, Allege Mistreatment, Bakersfield
Californian, July 17, 1990, at A8 (statement by Western Range Association Executive Director,
Larry Garro).
3
What are the worst experiences of the sheepherders?
What changes would the workers like to see implemented?
Are there indications of systemic abuse of the H-2A Program by sheepherder
employers?
Have the governmental agencies responsible for protecting the workers' rights
fulfilled their obligations?
Forty-one sheepherders participated in the study between December 1999 and February
2000. Typically sheepherders were interviewed individually as they live and work alone. All the
interviews took place on the valley floor where it is easier to locate and talk to the workers.
Interviews took place at sheep camps, outside the presence of employers. Many workers
specifically requested that the interviewers come to talk to them after dark so that their employers
would not see them talking to anyone. All sought assurances that their names would not be
revealed to their employers.
CCLS interviewers drove through the Central Valley looking for sheepherders. Each
sheepherder that was seen, and accessible, was offered an opportunity to participate in the survey.
To assure that workers would not be unduly influenced by the presence of their employers, team
members passed locations where the employer was present and returned at a later time. In
addition, several injured sheepherders living in Bakersfield were interviewed. There was no pre-
determination as to whom would be interviewed. Because of the remote locations of the herders,
and the difficulty in locating them, often only one interview per day was completed.
4
II. WORKING CONDITIONS
A.
Wages and Hours of Work
The vast majority of the
The wage rates do not deter domestic
workers from working as
sheepherders reported that they are
sheepherders. Americans do not take
the job because they do not know
required to be at the work site 24
how to tend sheep. Frank Munoz, executive
hours a day, 7 days a week, 365 days a
director of the Kern County Wool Growers Association,
quoted in Herding: Industry Officials Opposed to
Minimum Wage, Scott Forter, Bakersfield Californian,
year. Although employers insist that
Aug. 12, 1990, at B2,
the workers are merely "on-call," the
workers consider themselves working around the clock since they may not leave the work site.
Ninety percent (90%) reported they were never given a day off from work in an entire year.
Number of Rest Days Per Year
40
37
35
30
25
20
15
10
5
3
1
D
0
1 to 7 days
more than 15 days
0 days
8 to 15 days
Figure 1: Workers response to "How many days a year do you rest?"
5
Probative of whether the sheepherders
They are on call, as is a fireman, doctor,
are working, or merely on call as claimed by
mechanic or some people in the media.
Ben, Elgorriaga (sheep rancher); Fresno Bee, Nov 22
1991 at B.7.
the employers, is the ability of the workers to
engage in activities which people commonly participate when they are not working.
Sheepherders were asked if, during their time in the U.S., they had gone to the following
places: church, a movie, shopping, restaurants, the park, a party, or the library. The chart below
illustrates that the vast majority of sheepherders are not allowed to leave the trailer for even
simple activities commonly considered non-work activities. Several of the sheepherders who
stated they had gone to restaurants indicated they had done so covertly.
Non work Activities
50
40
40
41
41
40
38
30
30
28
20
10
13
3
1
1
0
0
O
11
Eat Out
Go to Park
Church
Shop
Watch Video
Fiesta
Library
NO
YES
Figure 2: Displays sheepherder answers to questions regarding their ability to participate in certain
non-work activities.
The vast majority of sheepherders reported their wages as $700 to $750 per month
approximately $.97 to $1.04 per hour. Federal law requires that H-2A workers earn the higher
6
of the applicable federal minimum wage, state minimum wage, or the DOL established Adverse
Effect Wage Rate (AEWR).
Historically, federal and state minimum wage laws excluded sheepherders. The passage
of the California Living Wage Act (LWA) in 1996 established a minimum wage for all industries.
The statute directed the Industrial Welfare Commission (IWC) to immediately issue wage orders
in compliance with the LWA. Although the IWC did so for other industries, it failed to do so for
sheepherders. The California Labor Commissioner continues to ignore requests for the
Commission to comply with the LWA. (See
Appendix 1).
It would be an administrative
nightmare if the sheepherders are
The DOL, charged with the
required to (be paid) the state
minimum wage. The employer will
responsibility of protecting these workers,
not be able to tell when the
continues to permit the ranchers to pay
sheepherder is working because the
herders work alone. Frank Munoz, executive
workers less than one dollar per hour.
secretary of the Kern County Wool Growers Association,
quoted in Herding: Industry Officials Opposed to
Minimum Wage, Scott Forter, Bakersfield Californian;
Aug. 12, 1990; at B2.
" An increase in pay. It is a misery." A sheepherder's answer to the question: Is
there anything that you want to add?
B. Statutory and Contractual Work Requirements
Law makers have a long history of helping agricultural employers recruit and import
foreign workers. The abuses of the Bracero program are well documented.⁸ Begun during the
⁸See Kitty Calavita, Why Revive an Inhumane Program? Los Angeles Times, July 18,
1999, at M-2.
7
second world war when growers convinced Congress that the war effort threatened agriculture
because it had created a shortage of workers, it continued long past the war's end.⁹ During this
time period wool growers began bringing impoverished sheepherders from the Basque area of
Spain to work in California's Central Valley. While the Bracero program ended for other farm
workers, the importation of sheepherders continues. The most recent continuation, part of a
broader program known as H-2A, came in the form of provisions in the Immigration Reform
and Control Act of 1986 (IRCA)¹⁰. Spain's economy improved and today the growers look to the
mountainous regions of Peru and Chile, 11 where poverty is rampant, to recruit most of their
workers.
The purpose of the H-2A program is to allow agricultural employers to bring foreign
guest workers when there is a shortage of "ready, willing and able" domestic workers. The stated
intent is to avoid the displacement of domestic workers and to prevent the depression of U.S.
workers' wages.
Contained within IRCA is a directive to the Department of Labor to establish standards
for sheepherder housing. 12 Nearly fourteen years after IRCA's passage, the DOL has yet to issue
the regulations Congress directed it to promulgate. Rather than adopting regulations as required
⁹See Jesus Martinez, Braceros: Exploited, Swindled, Ignored, San Francisco Examiner,
August 8, 1999; Fred Ross, Conquering Goliath: Cesar Chavez at the Beginning, El Taller
Graphico Press, Keene, CA (1989).
¹⁹Immigration Reform Control Act, 8 U.S.C. §1101 et seq.
"See Scott Forter, Herding: Industry Officials Opposed to Minimum Wage, Bakersfield
Californian, August 12, 1990, at B2.
12 See Immigration Reform and Control Act of 1986, 8 U.S.C. §1188(c)(4).
8
by the Administrative Procedures Act (APA), 13 the DOL issued a "Field Memorandum"¹⁴ which
provides "guidelines" concerning sheepherder housing. The APA requires public hearing and
comment on any proposed regulation. If the DOL were to follow its directive from Congress,
sheepherders and their advocates would be allowed opportunities to have their case heard. It
appears that the DOL did not seek any worker or worker advocate input when it issued the "Field
Memorandum." The memorandum itself makes it clear that it was developed through extensive
consultation with the Western Range Association which is composed solely of the employers of
sheepherders
The contents of the job offer made by employers for H-2A workers must state "all the
material terms and conditions of the employment." Employers may require H-2A workers to
perform alternative work only if such work is stated in the job order and the job order is
approved. 16 DOL Field Memorandum No. 74-89 (FM 74-89) describes the content of job offers.
FM 74-89 provides a "job specification" for sheepherders. This job specification limits
sheepherder duties to attending to sheep on the range, guarding sheep from predators, and
assisting with lambing, shearing, and docking. Employers may add to this description for reasons
of business necessity provided review and approval is obtained from DOL. Thus, employers are
limited by their contract with sheepherders and by DOL as to what type of work sheepherders
13 Administrative Procedures Act, 5 U.S.C. §§551 et seq.
¹⁴U.S. Dept. of Labor, Special Procedures: Labor Certification for Sheepherders Under
the H-2A Program, Field Memorandum No. 74-89, May 31, 1989. [hereinafter Field
Memorandum No. 74-89].
15 Agricultural Clearance Order Activity, Requirements for Accepting and Processing
Clearance Orders, 20 C.F.R. $653.501.
16 Id.
9
may perform.
Seventy percent (70%) of
sheepherders reported they were required to
"My boss made me work too hard
perform work other than shepherding,
as a welder. And work as a
driver. Response to question concerning non-
including construction, fence building,
shepherding work.
cooking, and driving. It has not been
established that there is a shortage of carpenters, construction workers, drivers and cooks in the
U.S. and these jobs are not included in any "guest worker" programs. None of these jobs are
included in the content of job offers specified by DOL FM 74-89. Workers surveyed who
performed non-shepherding work were not paid extra for these duties.
C. Illness or Injury on the Job
Forty-six percent (46%) of sheepherders reported having become ill or injured on the job.
Of this number, sixty-one (61%) percent reported receiving no medical attention for their injuries.
Sheepherders were asked to describe what happened when they complained to their employer
about lack of medical services. Complaints seldom resulted in a correction and often resulted in
retaliation against the herder. (See VII Sheepherders Right and Opportunity to Voice
Complaints, infra).
10
Job Related Injury or Illness
Injury or illness at work?
Did you receive treatment?
67.6%
53.7%
TE
32.4%
46.3%
NO
YES
Figure 3: Sheepherder responses to questions about health.
III. LIVING CONDITIONS
Because the sheepherders are required to be at the work site 24 hours per day, 365 days
per year, it is difficult to separate working conditions from living conditions. We have
considered the amenities that are present or lacking in the sheep camp as the indicators of the
living conditions.
A.
Standard of Living
The survey posed a number of questions aimed at determining the standard of living of
sheepherders. Workers were asked if their trailers had electricity, heating, cooling, a toilet,
bathing facilities, and a working refrigerator. They were also asked about the availability of
potable drinking water.
11
Amenities Provided Sheepherders
50
41
40
39
39
34
32
31
32
30
20
9
10
10
9
7
2
2
0
0
heat
water
fridge works
lights
air conditioner
toilet
bath
Legend
NO
YES
Figure 4: Graph displays frequency of no and yes as sheepherder answers to questions
regarding availability of lights, bathing necessities, toilets, heaters, and air conditioners.
Employers must certify that sheepherder housing meets DOL standards 17 The California
Employment Development Department (EDD) is supposed to inspect one third of such housing
units each year. 18 Forty-six percent of sheepherders reported their camp has been inspected.
Fifty-one percent reported that their trailer had been fixed just prior to the inspector's visit.
EDD inspectors routinely certify that the sheep camps meet DOL standards even though there are
no toilets, heating or air conditioning, or bathing facilities. None of the camps meet properly
issued DOL standards because the DOL has failed or refused to issue regulations.
¹⁷See 20 C.F.R. $653.501; 20 C.F.R. §655.102 - $655.103; U.S. Dept. of Labor, Special
Procedures: Labor Certification for Sheepherders Under the H-2A Program, Field Memorandum
No. 74-89, May 31, 1989 [hereinafter Field Memorandum No. 74-89].
¹⁸See Field Memorandum No. 74-89
12
1. Availability of Fresh
Lack of Food and Water
Food and Water
Questions were
asked to determine if
employers were late in
YES
NO
NO
14
brining food and water.
YES
27
Figure 5: Displays sheepherder answers to question regarding
whether ranchers are late in bringing food and water to the camps.
"I was three days in the desert without water to drink."
IV. EMPLOYER CONTROL
We tried to determine if the employers exercise control of the sheepherders' lives.
A. Contacts with Others
The employer control over workers begins with the remoteness of the work sites. A
single worker will often find himself miles from any town or city. They are often alone in the foot
hills of the Sierras or in the desert. When they work on the valley floor they are often on posted
private property, miles from paved roads. Telephones are not accessible to the workers.
Because of their location, and lack of transportation, (see discussion on transportation below) it is
unlikely that they will have contact with anyone save those working at the company. Even when
the workers find themselves in fields along major highways or roads, and very close to towns, most
are still not allowed communication with others.
Questions were asked to determine the type of contacts they were allowed. Fifty-nine percent
(59%) reported they were prohibited from having newspapers, magazines, or books. When asked
13
about contact with others who do not work with them, most reported this was forbidden by the
employer. Answers to questions regarding contact show that ranchers control all communication
with the outside world, including association, speech, correspondence and receipt of information.
(1)
Are you permitted to have visits from people who do not work with you?
(2)
Are you permitted to make a visit with someone who does not work with you?
(3)
Are you permitted to speak with other people who do not work with you?
(4)
Must you send or receive correspondence through your employer?
(5)
Are you permitted to have newspapers, books, or magazines?
Control of Information and Access to Others
50
41
40
36
34
33
30
24
20
17
10
7
8
5
0
0
visit others
mall thru boss
visitors allowed
speak to others
newspapers etc
NO
YES
Figure 6: Answers to questions regarding employer control over access
to information and contact with others.
14
B. Transportation
More than 93% of the sheepherders reported they have no transportation. The 7% who
were allowed transportation were usually the "camperos," persons responsible for delivering
provisions to other workers and for transporting
workers to remote job sites.
92.7%
Question: Are you allowed some type of
transportation?
7.3%
NO
YES
Figure 7: Availability of transportation
C. Documents Kept By Employer
Employers regularly retain employee documents which show that the worker is legally in
the United States. Workers present as H-2A guest agricultural workers are issued a form I-94
from the United States Immigration and Naturalization Service (INS). Sheepherders report that it
is the common practice for the rancher or the Western Range Association to keep the I-94. The
survey asked workers whether they had their Form I-94. Sixty-one percent (61%) reported they
did not have their Form I-94.
D. Deductions From Pay
Under the H-2A program, the employer is entitled to deduct from the worker's pay the
cost of transportation and subsistence incurred by the employer in bringing the worker from his
native country to the U.S.¹⁹ The worker is entitled to reimbursement of these deductions after
¹⁹See 20 C.F.R. §655.102(b)(5).
15
completing 50% of his contract time. 20 The contract time is usually three years for sheepherders.
In contrast, other H-2A workers have contracts of only a few months. The employer is responsible
for transportation costs back to the worker's native country.2¹ Field Memorandum No. 74-89
states that under certain circumstances the employer is not required to reimburse the worker for this
withholding, nor to pay his transportation costs home. These circumstances include: (1) the
worker quit or ran off before finishing the contract;²² (2) the worker was fired for a legitimate
reason;²³ or (3) the worker refused to be transferred to another WRA member regardless of locality
(i.e. different state) or reduction in pay.24
Workers report that complaining of conditions often results in their being fired.
One of
the workers surveyed reported that after having complained of conditions to his employer, he was
fired and left at a hotel. Shortly thereafter he was picked up by the INS and detained for two
months at an INS detention center because he could not prove his legal right to be in the country
since the WRA had retained his I-94 and the rancher had his passport.
²⁰Id.
²¹d.
²²See 20 C.F.R. §655.102(b)(11).
²³Id.
²⁴See Field Memorandum No. 74-89, Supra note 33.
16
V.
SHEEPHERDER RIGHTS and OPPORTUNITY TO
VOICE COMPLAINTS
He was angry and they shouted.
Not a single sheepherder surveyed
He said I can die behind the sheep.
spoke English. Fifty-four percent (54%)
He criticized me and was annoyed.
reported they were unable to read their
He was angry and did nothing.
employment contract. The job duties and
They do not listen.
living conditions were not explained to most
He said we do not have a right to claim
sheepherders prior to leaving their countries
anything, and that was in the contract.
and traveling to the United States. Sixty-six
Responses to question of how employers responded
percent (66%) did not know what their
to complaints about lack of food or medical
duties would be before they arrived in the
United States and started working as sheepherders. Ninety-five percent (95%) reported they did
not know what was waiting for them in the United States. Reports of retaliation, coupled with
employers' control over all aspects of life, indicate that sheepherders have reason to fear
complaining about their situation.
He attacked me and soon he fired me.
He fired me from the job, telling me I was a nobody.
He fired me.
He treated me very badly and then fired me from the job.
Responses to question of how the employer responded to complaints about lack of food
or medical services.
17
Although the H2-A program is administered by DOL, there appears to be no effort by DOL
to inform workers of their rights. Workers are not provided DOL information about how to
contact the DOL if they have a complaint. Even if such information were provided, it is unlikely the
DOL would receive complaints since the workers would need to mail a complaint through the
employer or request a ride to a public telephone to call the DOL.
VI. SHEEPHERDERS VIEW OF THEIR TREATMENT
The survey sought to determine how sheepherders view their treatment by the employers.
They were asked if they believed that the Western Range Association complied with the contract.
Do you think the WRA complied with the contract
Do you perform work other than sheepherding
70.7%
NO
YES
YES
92.5%
7.5%
NO
29.3%
NO
YES
Figure 8: WRA and Rancher Compliance with H-2A Program Requirements.
Participants were also asked, in open-ended form, how they are treated by their employer.
18
Employer Treatment of Workers
25
22
20
15
12
10
5
5
1
1
O
good
very bad
very good
bad
no answer
Figure 9: Sheepherder response to question: "How do they treat you in
this company?"
VII.
SHEEPHERDER COMMENTARIES
A. Best Experiences of Sheepherders
The survey contained a number of open-ended questions.
Employers insist that the H2-A program offers tremendous
Describe your best
experience as a sheepherder
in the U.S. "There are
opportunities to the workers. We sought to determine if the
none."
workers' view is consistent with that of the employers'.
Participants were asked to describe their best experience as a sheepherder in the United States.
Twenty- five of the workers did not answer this question. Eight responded that they had none. The
19
complete responses of the remaining participants are listed below.
What has been your best experience as a sheepherder in the United States?
"I don't know."
"None. On the contrary, it has all been suffering."
"That some Americans gave me food that my employer never gave me."
"To work in another country."
"In the lambing season, the responsibility to save the lambs."
"Tending the animals."
"Guarding the sheep."
"Riding a mule."
"It is always the same, routine work."
"It was my boss who helped me immigrate."
B. The Worst Experiences of Sheepherders
In contrast to the 33 non-responses or response
Describe your worst experience as a
of "none" elicited by the question about the
sheepherder in the U.S. "Bad
treatment by my employer,
sheepherder's best experience, only 5 did not answer
to be treated like a slave
when asked about their worst experience. Only one
and to live far away from
the family."
replied "none."
By far the most common response concerned loneliness. Twenty-one of the thirty-seven
answers referenced the loneliness the sheepherders experience. Others told of being lost in the
mountains, being in the desert without water, not having food for days, and of being sick with no
ability to contact anyone. One worker summed up his experience this way: "Bad treatment by my
20
employer, to be treated like a slave and to live far away from the family."
"It has been the worst experience of my life. I was thinking to
overcome this, but they did not fulfill the rights that are
stipulated in the contract."
"I was made to sleep outside with the
"They send me every year
sheep and to cook with firewood on the
to the mountains with a
ground.'
donkey and to cook with
only one pot."
C. What Sheepherders Want
The survey provided the participants the opportunity to comment on anything they wished
by asking "Is there anything you would like to add?" The overwhelming majority of those who
answered this question, thirty of thirty-four, said they wanted better wages. Others spoke of better
treatment and working conditions. A succinct statement by one worker reflected the simple hopes
of all the workers we interviewed: "That they treat us like humans, increase our pay and comply
with the contract."
Is there anything you want to add?
Is there anything you want to add?
"That they treat us like humans,
"Increase in pay, a day of
increase our pay, and be made to
rest each month, and
comply with the contract."
equipment for work."
21
VIII. CONCLUSIONS
The survey answers show a pattern of conduct on the part of employers and governmental
agencies significantly injurious to the health, safety, and welfare of sheepherders, including:
failure of the California Labor Commissioner to enforce the Living Wage Act;
failure of the Department of Labor to promulgate regulations;
complicity by the Employment Development Department in certifying sub-standard housing;
failure of employers to abide by assurances required by IRCA;
failure to return documents to workers;
failure to provide workers with pay stubs showing hours, rates, and deductions;
illegally restricting workers' free association and speech;
failure of employers to abide by the terms and conditions of the job order (contract);
late delivery of potable water and food;
failure to provide required medical services to injured or sick workers;
abandonment of injured or seriously ill workers;
physical and emotional abuse of workers.
Sheepherders comprise an invisible workforce. Their plight is unknown to the general
public. No previous surveys or studies attempted to document their working and living conditions.
Sheepherders in California's Central Valley live lives of forced isolation, deprivation and
22
domination. Their employers exercise complete control over all aspects of their lives. They have
no religious, emotional, or familial support available. Their most fundamental constitutional and
human rights are denied on a daily basis. State and Federal governmental agencies charged with
the responsibility of protecting the workers, fail to carry out legislative directives.
IX.
RECOMMENDATIONS
The authors of this report suggest a few simple steps which can be taken immediately to
begin the process of bringing the working conditions of sheepherders into the twenty-first century.
We recognize that these are only a beginning but view them as the basis for fundamental change
that is necessary.
The California Industrial Welfare Commission should follow the mandate of the Living
Wage Act by issuing and enforcing a minimum wage order for sheepherders.
The United States Department of Labor should immediately begin the process of
promulgating sheepherder regulations in accordance with the Administrative Procedures
Act.
The DOL should initiate an outreach program to assure that sheepherders are informed of
their rights and have an effective enforcement mechanism available to them.
Responsible members of the industry must step forward and demand that the employers end
the employment practices revealed in this study.
Members of the public should demand that public officials carry out their charge of
protecting the rights of the workers.
23
Appendix
24
Law Offices of
CENTRAL CALIFORNIA LEGAL SERVICES, INC.
2014 Tulare Street, Suite 600
Fresno, California 93721
Phone: 559 441-1611
Fax: 559 441-7215
January 25, 2000
Ms. Marcy V. Saunders
California State Labor Commissioner
Industrial Welfare Commission
1121 L Street, Suite 307
Sacramento, CA 95814
RE:
Wage Order 14-80
Dear Commissioner Saunders:
Central California Legal Services, (CCLS), seeks clarification on the failure of the sheep industry to pay
minimum wage. The failure does not involve one or two individual employers but virtually the entire
industry. As many as one thousand workers may be affected. The employers' refusal to pay minimum
wage is based largely on the failure of the Industrial Welfare Commission to make it clear that these
workers are entitled to be paid the state mandated minimum wage.
It is our belief that the current exclusion is probably inadvertent. We hope that the as the Commissioner,
you will clarify your position on this matter.
Hundreds of non-resident immigrant sheepherders in California labor for an effective wage of less than
$1.00 per hour. They receive this wage with the tacit blessing of the California Industrial Welfare
Commission Wage Order 14-80 purports to exclude these workers from its protective provisions. That
Wage Order provides, in part:
F.
APPLICABILITY OF ORDER
This Order shall apply to all persons employed in an agricultural occupation whether paid on a time,
piece rate, commission, or other basis, except that:
(E) The provisions of this Order shall not apply to sheepherders."
The IWC originally adopted this provision in 1975 and denied a sheepherder's petition to remove it in
1991. Both these actions occurred prior to the passage of the Living Wage Act in 1996.
Continuation of this provision is clear violation of California law.
25
Marcy V. Saunders
January 25, 2000
Page Two
The California Labor Code provides, in pertinent part:
"$1182.11. Minimum wage for all industries; amount; adoption of minimum wage orders
Not withstanding any other provision of this part, on and after March 1,1997, the minimum wage for
all industries shall not be less than five dollars ($5.00) per hour; on and after March 1, 1998, the
minimum wage for all industries shall not be less than five dollars and seventy-five cents ($5.75) per
hour. The Industrial Welfare Commission shall, at a public meeting, adopt minimum wage orders
consistent with this section without convening wage boards, which wage orders shall be final and
conclusive for all purposes." (Emphasis added).
Although a new agricultural wage order was adopted, the new Order 14-80 continues to exempt
sheepherders. Consequently, the wage order is not "consistent with this section" since it exempts an
entire industry from the payment of minimum wage. It is our belief that Section 1 (E) was mistakenly
left in at the time the IWC adopted the new order.
CCLS is presently preparing a white paper on the treatment of sheepherders in the Central Valley.
Numerous sheepherders participated in interviews. The preliminary results reveal an industry that
denies workers the most basic of human rights. Employers require sheepherders to stay at the job site
24 hours a day, 7 days a week, 365 days year. Workers are prohibited from leaving the work site at
any time unless directed to do so by the employer.
Usually, they have no form of transportation available. Sheepherders often work in remote mountain
or desert areas and have no human contact for days, sometimes weeks. At other times they work on
the valley floor tending flocks in fields, vineyards and orchards. Even though they may be close to
towns and cities, they are prohibited from leaving the work site. They are not provided any method to
communicate with others. Often times, the nearest phone may be miles from the work site.
Sheepherders must depend upon the employer to bring food, water, medicines, mail, and newspapers.
Many report that their employers instruct them not to talk with anyone else or to have visitors.
Most come to California from Peru or Chile. Upon arrival they are immediately placed at work. Given
the total isolation in which they labor, coupled with linguistic and cultural barriers, they have no way
to inform themselves of their rights, let alone take action to enforce them.
Sheepherders live in a trailer, or a tent. Typically, only one shepherd lives in a camp. The trailers are
unbearably hot in summer and intolerably cold in winter. They do not have running water, electricity,
heat, bathing, laundry, or toilet facilities. Usually a shovel is provided so the shepherd may bury his
excrement. Sometimes there is no shovel.
26
Marcy V. Saunders
January 25, 2000
Page Three
Shepherds in California are generally paid $700-$750 per month for being at the job site 24 hours a day,
seven days per week. Most often, they do not receive check stubs showing hours, rates, and
deductions.
Although most sheepherders are legal, non-immigrant aliens working under the federal H2-A program,
their employers are not exempt from state laws. The H2-A Program does not preempt state
employment laws. The wages and working conditions offered by the employer must be either "the
prevailing wage and working conditions among similarly employed agricultural workers in the area .
or applicable Federal or State minimum wage, whichever is higher." Requirements for Accepting and
Processing Clearance Orders, 20 C.F.R. 653.501(d)(4)
Clearly, this is not occurring.
Our interpretation of the law is that the Wage Order 14-80 should be corrected to conform to Labor
Code Section 1182.2. Does the Commissioner agree with this interpretation? If so, could you please
inform us what actions will be taken by you to bring the Wage Order into compliance with section
1182.2? If you have a different interpretation of the law, could you please inform us what that
interpretation is? We intend to publicly release the white paper in several weeks. We want to be
certain that we properly present your position on whether or not sheepherders are entitled to be paid
minimum wage.
Thank you for your consideration in this matter. Please contact me at the above address or phone
number if you heed any more information.
Sincerely,
Chris A. Schneider
Executive Director
27
Law Offices of
CENTRAL CALIFORNIA LEGAL SERVICES, INC.
2014 Tulare Street, Suite 600
Fresno, California 93721
Phone: 559 441-1611
Fax: 559 441-7215
March 2, 2000
Ms. Marcy V. Saunders
California State Labor Commissioner
Industrial Welfare Commission
1121 L Street, Suite 307
Sacramento, CA 95814
RE:
Wage Order 14-80
Dear Commissioner Saunders:
On January 25, 2000, I sent you the enclosed letter. To date, I have not received a response. I
realize, of course, that you have many pressing matters to which you must attend. To the hundreds
of sheep herders who continue to be paid an effective wage of less than $1.00 per hour and labor under
intolerable conditions, this matter is of paramount importance.
I would greatly appreciate a reply at your earliest possible convenience. Central California Legal
Services plans a media conference to release its study of the condition of sheep herders on March 15,
2000.
As Indicated in my earlier letter, we want to be certain that we represent the position of the Labor
Commissioner correctly when we release our study.
I thank you in advance for your anticipated cooperation.
Sincerely,
Chris A. Schneider
Executive Director
encl.
28