Sheepherders lose bid to earn minimum wage

OLYMPIA – It may be a tough job – fending off coyotes, helping ewes birth lambs, living in remote rangeland – but shepherds don’t qualify for Washington’s minimum wage.

So said a slim majority of the state’s Supreme Court, which on Thursday threw out the case of two foreign shepherds who sought the state’s minimum wage, instead of the federally-approved $650 a month.

The decision was a victory for the state’s two remaining open-range sheep ranchers.

“I’m glad this deal is over,” said Max Fernandez, a 64-year-old Klickitat County rancher who spent $30,000 fighting the suit in three courts. “I’ve complied with the law all my life. I believe in America, and I believe in the justice system.”

Like most open-range shepherds in America, Heriberto Berrocal and Rafael Castillo were recruited in South America by the Western Range Association. In the late 1990s, they went to work on Fernandez’s ranch. Since the 1950s, the federal government has allowed foreign shepherds here on special visas, with the U.S. Department of Labor setting a minimum salary. In Washington, that minimum – unchanged for several years – is $650 a month.

The workers feed, water and herd the sheep, working with dogs to keep them from straying or eating poisonous weeds. Round the clock, shepherds must be available to help dogs keep predators at bay. The ranchers provide food, shelter and medical insurance.

Five years ago, Fernandez said, Berrocal and Castillo walked off the job. They went to Columbia Legal Services, a nonprofit organization that provides lawyers for low-income people. With the help of Columbia’s lawyers, the two shepherds filed suit against Fernandez and the range association, seeking hourly minimum wages for 12 hours a day. That added up to $2,052 a month, instead of the $650 they got.

“Our clients were seeking fair wages for people doing that type of work, for the time they worked” said Lori Isley, a Columbia Legal Services attorney in the case. “… This is exactly what the law was intended to do, to set these very minimal standards.”

Ranchers maintain that paying minimum wage would drive them out of business. And with sheepherding, they say, there’s no clear line between working and simply being on hand in case of trouble.

Washington’s $7.35-an-hour minimum wage law exempts some farmworkers and salespeople, forest fire fighters, newspaper carriers, elected officials and foreign seamen.

It also exempts people who live at the work site. Isley argued unsuccessfully that that exemption is only for the hours not actually worked.

Five of the nine Supreme Court justices disagreed, saying they read the law differently. Also, it’s impractical, Justice Susan Owens wrote, to expect employers to vary a shepherd’s work status “hour by hour, or minute by minute” when, for example, he gets up at night to check a lamb’s bleating or a coyote’s howl.

The four remaining justices dissented, saying the law is vague, but that the law should be liberally interpreted on behalf of the workers.

“Berrocal and Castillo are simply asking that they be paid for the hours they work,” wrote Justice Charles Johnson. The law is to ensure minimal employment standards, he wrote, not “to guarantee that employers are insulated from timekeeping paperwork.”

Castillo was disappointed by the ruling, his attorney said, but hopes that the Legislature will change the law.

Fernandez said he’s irked that he’s had to spend $30,000 fighting off the lawsuit.

“There’s no consequence for Columbia Legal Services,” he said. “I’m the only one who pays.”

After a summer in the scrub-brush hills above the Columbia River, his ewes are back at the ranch for winter. The lambs are in California, being fattened up for slaughter.

One of Fernandez’s shepherds is now back in his native Chile, visiting family. He plans to return next year.