This next time around, however, he could make a lot more money. On January 1, 2022, California’s agricultural worker overtime pay rules went into effect for sheepherders employed by operations with 25 or fewer employees. Getting paid overtime means that this year, sheepherder pay jumped from just under $2,500 per month to about $3,400 per month, a figure that will increase incrementally to $4,500 by 2025.

Producers argue that the new overtime rules will devastate California’s sheep industry. The California Wool Growers’ Association (CWGA) is suing the state over the rule, arguing that it was inappropriate to include sheepherders, who have long been treated as an exceptional category by both immigration and labor law.

This isn’t the first legal clash over sheepherders’ labor. Multiple court cases in recent years have pitted herder advocates and the sheep industry against one another over wages, working conditions, and hiring processes. Just last week, sheepherders announced a lawsuit against the Western Range Association (WRA), one of two main broker agencies that assist ranchers in hiring workers, for “cartel-like wage suppression.” But the arguments of both sides coincide in some important ways: Both argue that H-2A does not adequately address the need for long-term, skilled immigrant sheepherders, and that the fights over the cost of labor are a symptom of the larger problem of the way meat industry squeezes producers to keep prices low.

From Canned Mutton to Soil Health

Most sheep ranchers will tell you that the story of the industry is one of decline. The industry is unique in agriculture in that it produces two products: lamb and wool. But after a generation of GIs had their fill of canned mutton during World War II, per capita consumption of lamb dropped precipitously—from around 5 pounds per year in the 1960s to less than one today. With that consumption down, price subsidies from the National Wool Act supported the industry.

When the Act sunsetted in 1994, remaining producers shifted their focus back to lamb—but, as in other areas of the meat industry, consolidation of meatpacking houses has kept prices too low for the industry to grow. The 5 million sheep in the U.S. today represent less than one-tenth of the 56 million in the country in 1940, and a decline by half since 1994.

Recently, California sheep producers have found a new market: ecosystem services. Supported by landowners and grants from agencies like the California Department of Forestry and Fire, targeted grazing helps achieve environmental goals such as invasive weed control, wildfire mitigation, and soil health.

“It isn’t the classic model of livestock production, where you have the same herd and feed resources year over year and change is bad,” says Lee Hazeltine, whose business, Integrazing, brings sheep and goats to graze subdivisions and open space preserves. According to Dan Macon of University of California Cooperative Extension, the number of sheep in the state has remained about the same in recent years, but there has been an uptick in operations.

A sheepherder at Kaos Sheep Outfit (Photo credit: Kaos Sheep Outfit)

This type of work has become integral to the work of Kaos Sheep Outfit, where Aldazabal Inga works. Jaime Irwin, one of Kaos’ owners, says the overtime law is coming in the midst of the sheep industry demonstrating its value to the state’s climate mitigation efforts. “Sheep in California are everywhere—vineyards, alfalfa fields, carrot fields,” she says. “The state has all these goals to be carbon-neutral and the sheep are doing it, we just have to prove it. But it feels like they’re going to wipe out the industry before we can.”

‘No Tengo Horario Fijo’—‘I Don’t Have a Fixed Schedule’

Currently, there are an estimated 1,500 H-2A sheepherders in the U.S., and between 300 and 400 in California. Around 80 percent of these workers come from Peru; others come from Chile and Mexico. According to Ricardo Perez, executive director of Colorado’s Hispanic Affairs Project (HAP), an organization that helps organize sheepherders, most are Indigenous and have little formal education.

In recent years, HAP has brought multiple lawsuits regarding the wages and working conditions of H-2A sheepherders, including accusations of human trafficking and wage suppression. As in the current overtime debate, a core question of those lawsuits has been just how much sheepherders work. The labor is challenging to quantify because they live on-site, are always on call, and because the work—which includes tasks such as moving sheep, caring for herding dogs, and setting up electric fencing—changes over the course of the year.

When it’s hot outside, say producers, herders work relatively few hours because they take long breaks during their morning and evening tasks to stay out of the heat. But Perez notes that during the unpredictable and complicated spring lambing season, herders’ workdays can extend to 18 or 20 hours as they help the sheep give birth.

“The work really varies by season,” explains Macon. “Over the course of the year, I’d say the average is in the 40 to 48 hours per week range.”

Bring on call 24-7 also has its challenges. “Sometimes you have to get up at night because [the sheep] break through the fence and escape,” says Ricky Romel Cerrón Porta, a sheepherder from Llamapsillon, Peru, who also works at Kaos. “You know because the dogs start barking, and the sheep make different noises, too.”

HAP’s Perez says that herders should be considered to work at least 60 hours per week because of their limited mobility. Even in summer, when they take breaks, he says, they aren’t taking full days off, and often cannot leave their workplace independently, because they lack transportation. Meanwhile, both Aldazabal Inga and Cerrón Porta say the hardest part of the job is something that doesn’t have a dollar value: the years of separation from their families.

Overtime for Farmworkers

This interpretation of sheepherders’ work hours came as a surprise to producers because in 2016, a federal Department of Labor (DOL) ruling had determined that H-2A sheepherders’ workweeks were 48 hours long and because the state labor code treats their labor as a category separate from other forms of agricultural labor. Some speculate that they were only included because of a lack of understanding of the work and the regulations that govern it.

“I don’t think lawmakers or agencies have taken the time to understand the mechanics of how the H-2A program works and how it interfaces with the DOL at the federal level,” says Andrée Soares, vice-president of the CWGA and owner of the targeted grazing business Star Creek Land Stewards. Macon agrees that sheepherders’ inclusion in the law “seems to have been an oversight.”

Hazeltine sees the problem as a need for a labor code classification for planned grazing that would include provisions for on-call pay. The California Department of Industrial Relations declined a request for comment, citing ongoing litigation.

According to Ryan Indart, a rancher and past president of the CWGA, the group’s members believe that the state didn’t follow the Administrative Procedures Act in forcing the sheepherder overtime rule without notice or comment periods. They also believe that it violates state labor code, which historically has exempted sheepherders from wage orders. “We’ve always had special treatment from the law, because they don’t just clock out,” Indart explains. The CWGA appeared in District Court in February 2022 with these arguments but didn’t prevail, and will appeal the ruling through the 5th Circuit Court of Appeals in early 2023.

The Road to the 48-Hour Workweek

The federal Department of Labor (DOL) recognized starting in the 1950s that it was nearly impossible to recruit domestic workers to herding. Initially, Congress enacted special laws to admit skilled sheepherders, many of whom came from the Basque region of Spain, with visas that gave them permanent U.S. residency. But by 1955, ranchers had begun to complain that the herders were using their residency to find employment in other occupations. In response, the House Judiciary Committee recommended that sheepherders no longer be admitted with permanent residency visas, but instead through the guest worker program.

But sheepherding is neither seasonal nor temporary, the types of work H-2A is designed to serve. Because of this, the DOL created special procedures for the industry. While H-2A visas must be under a year in length, for instance, sheepherders receive 364-day visas that can be renewed three times before they have to return home and wait for another visa. Many spend their whole careers working for the same producer in three-year increments. And because of the remote nature of the work, employers must provide sheepherders with room and board—they are not allowed to deduct it from their pay, as employers of other H-2A workers can—and a radio or phone.

Monica Youree, executive director of the WRA, says the special program was put into place for sheepherders “because normal H-2A didn’t quite fit.” But advocates point out that the sheepherder program was written with input from the WRA.

Because the 1938 Fair Labor Standards Act exempts sheepherders from minimum wage, the DOL historically determined herders’ monthly pay through prevailing wage surveys conducted among producers. In 2009, herders’ monthly pay was only $650 per month in Wyoming and $750 in Colorado, while non-herding H-2A workers with a 40-hour workweek earned $1,700. “The workers were being excluded from labor standards for foreign workers,” says Perez.

In 2010, Tom Acker, a Spanish professor at Colorado Mesa University, and Colorado Legal Services conducted a survey of the living and working conditions of 93 Colorado sheepherders. Acker found that many sheepherders’ housing and clothing were not adequate to protect them from the elements, most had no toilet, and many did not have adequate food storage to keep their food from spoiling in the heat or freezing in the cold. He argued that their experiences had attributes of human trafficking, such as control of documents, control of movements, prohibition of visitors, and the threat of violence or deportation.

After the survey, HAP, Colorado Legal Services, and others sued the DOL, arguing that the H-2A sheepherder program kept wages too low for U.S. workers to be able to take the positions. A court of appeals eventually ruled in the plaintiffs’ favor. The ruling required a new methodology for determining sheepherders’ pay, and determined that they should be paid for a 48-hour workweek, with a federal minimum monthly pay of $1,700. (California’s $2500 monthly salary is because of the higher state wage rate.)

Many producers claimed the new standards resulting from the 2015 ruling would put them out of business, and voiced concerns about the demise of the sheep industry. Jaime Irwin and her husband adapted to the changes by investing in building a strong team of workers at Kaos. With the requirements to pay more, she says, “you have to have really quality folks or you’re going to go under.” They focused on helping their herders develop both important hard skills and soft skills like teambuilding and communication. Now, they are working to develop Spanish-language trainings about how to best use planned grazing for wildfire mitigation and soil health. “We go to conferences and get inspired, and we want our team to have that same experience,” adds Irwin.

Points of Agreement

According to Macon, the price for a finished lamb is currently around $1.70 per pound, down from around $3 a year ago, while “the price of getting sheep from point A to point B has doubled.”

Acker, the Spanish professor whose research helped spur the 2015 lawsuit, agrees that the way the meat industry squeezes producers is a major problem. “There needs to be a diversification of access to meat processing, such as abattoirs in rural areas and USDA authorization for them,” he says. “The industry is controlled by consolidated processors and packinghouses who use all kinds of justifications to keep prices low.”

Advocates and some producers also agree that H-2A is not the best fit for sheepherding’s long-term, skilled labor. In 2019, HAP won another lawsuit, arguing against the use of H-2A visas for sheepherders. “People spend their entire lives living in the United States on this temporary visa with a very poor salary,” says Perez. The case argued that permanent residency visas are best for sheepherders.

According to David Seligman, executive director of Towards Justice and the lawyer who represented HAP in the lawsuit, sheepherders with green cards can still be on-call on the range for an hourly rate below minimum wage, because of the 1938 Fair Labor Standards Act. But they gain the bargaining power of not being bound to their employer. He believes that if more ranchers understood the process of sponsoring their sheepherders for a green card, many would. “Many [of the ranchers] come from Basque families who came here on permanent residency sheepherding visas,” he adds. “They have that history of migration.”

Irwin echoes this. Though the process requires substantial paperwork, she sees sponsoring her employees for green cards as a boon for their professional development, and the only way for them to be able to see their families more often. She has sponsored all but three of her sheepherders for permanent residency, and is working on the rest.

“I would like to see them like the Basque,” she says, “creating their own companies and bringing their families.”