Captive Labor

The plight of Peruvian sheepherders illuminates broader exploitation of immigrant workers in U.S. agriculture.

ALVARO BEDOYA

This article is from the September/October 2003 issue of Dollars and Sense: The Magazine of Economic Justice available at http://www.dollarsandsense.org/archives/2003/0903bedoya.html


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This article is from the September/October 2003 issue of Dollars & Sense magazine.

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On the night of June 25, 2000, Remigio Damián, a Peruvian shepherd, collapsed on the doorstep of a local farmer. Feverish and frail, Remigio had spent the past four days walking through mountains and pastures to escape his employer—a prominent local landowner—who he alleged had thrown him to the ground in a fit of rage. According to Remigio, his boss had housed him in a tent for months at a time, and frequently failed to provide him sufficient food, leaving him half-starved in remote areas of arid highland.

One year later, after a slow and bureaucratic government investigation into the matter, Remigio's boss was handed the following sentence: not a dime to be paid in fines, not a day to be spent in jail, just a requirement that he write a manual on how he will treat new hires…

Stereotype has it that such abuse and injustice is confined to remote regions of the Third World, but Remigio did not work in the pastures of Cusco, or anywhere near the Andes. Remigio Damián worked in Colorado for Louis Peroulis, a wealthy rancher, and his case is typical of what may be the most exploited group of laborers in America: foreign sheepherders.

Beginning in 1957, American sheep ranchers began importing sheepherders, primarily from the Basque country of northern Spain. When the Spanish economic situation improved in the 1970s, the sheep industry turned to a poorer region: the Peruvian highlands. Today, over 2,100 foreign sheepherders work for American ranchers. The sheepherders are almost all from central Peru—with a few exceptions from Chile, Mexico, and Mongolia. With the help of this impoverished (and effectively captive) workforce, American ranchers have been able to keep labor costs at a minimum, actually decreasing herders' real (inflation-adjusted) earnings by 50% to 70% over the past 50 years.

Since the passage of the 1952 Immigration and Nationality Act, the federal government has allowed agribusiness to import "temporary guest workers" from abroad to perform agricultural work that U.S. citizens are presumably unable or unwilling to undertake. Known as "H-2A" workers for the statute providing for their immigration visas, these laborers are bound by federal law to work only for the employer that sponsored their entry, and are required to return to their country of origin upon the completion of their contract. Should H-2A workers decide to leave their jobs, they can be imprisoned and eventually deported.

Like most H-2A workers, sheepherders toil in remote areas. In the spring and summer months, most sheepherders are given a mule and a tent and are sent to graze their flock—typically consisting of 750 to 1,250 sheep—in high pastures. From November to March, the "lambing season" when new lambs are born, herders return to the ranch—itself typically located in a distant, rural area—to assist in lambing and to facilitate the shearing and slaughter of selected sheep. While lamb meat and wool—the chief products of the American sheep industry—find their way into every supermarket or department store in the country, Americans rarely see the abuse and exploitation that it takes to produce these popular commodities. Sheepherders' suffering is invisible to the ­public.

In the summer of 2002, I traveled to California to have a closer look at the living and working conditions of these laborers. Over two months, I interviewed industry representatives, government officials, and 32 current and former sheepherders. The suffering and squalor that I found was highly troubling in its own right, but even more unsettling for the implications it had for H-2A workers and for all agricultural labor in the United States.

"Even in Peru We Don't Live Like This"

Nationally, with the exception of California, Oregon, and North Dakota, sheepherders are not paid more than $750 per month. In California, the pay is higher ($1,200 per month) thanks to the efforts of labor advocates. These income figures can be deceiving, however. Herders are not paid for a month of nine-to-five workdays: sheepherders are on-site, on the job, 24 hours a day, seven days a week. Whether they are grazing their charges in higher pastures during the summer, or tending to newborn lambs in the winter, most herders are specifically prohibited from leaving their work site. "We can only go into town to shop or visit friends if we escape our camps at night without the rancher noticing," lamented one herder. Their back-breaking labor literally never ends: 80% of herders reported not having a single day of rest in at least the past year, many for much longer.

Taking this into account, hourly wages for herders are pitifully low, ranging between $1 and $3 per hour, far lower than the $5.15 minimum wage guaranteed by law to most other workers in the United States. But the sheepherders' wages are not illegal. In fact, each year the Department of Labor (DOL) actually sets wage floors by state for H-2A sheepherders at these subsistence levels.

Ranchers respond to these criticisms by noting that all herders are provided room and board free of charge. Unfortunately, for over 95% of the herders I interviewed, "room" meant a cloth tent or a dilapidated trailer. (Some ranchers were more creative, though: two years ago, the Peruvian consulate learned that a group of Arizona herders was housed in a broken down school bus.) Regardless of whether a herder was housed in a trailer, tent, or covered wagon, conditions were abysmal. Though summer temperatures in California's Central Valley can rise up to 110º, not a single sheepherder had air conditioning. Though temperatures can dip below freezing in the winter, not one sheepherder's housing unit was equipped with a heating system. Moreover, not a single herder interviewed was provided with a toilet; every single herder was given a shovel with which to bury his excrement.

"Board" was as inadequate as "room." With few exceptions, herders' rations consisted of lamb meat, either salted or slaughtered on-site, and canned goods. The majority of herders reported receiving the same food week after week, and noted that they were rarely given fresh fruit. One herder described his entire food supply for the year as "four lambs and canned food. Nothing else." Another, lacking a way to refrigerate the meat he was given, kept it in a red burlap sack hidden under his cot. "This way the dogs can't get to it," he explained. Herders reported that under these conditions, their meat often rotted in less than four days, forcing them to finish their weekly ration by the middle of the week.

While herding sheep may sound safe and easy, herders perform many related tasks that place them at great risk, such as moving 100- to 200-pound coils of fence and driving on treacherous roads to reach new camps. Herders in California and Nevada are exposed to an additional threat—Valley Fever, a fungal infection triggered by Coccidioides immitis spores native to California's Central Valley. Though Valley Fever can be treated if detected, it is almost unknown outside of California, Nevada, and northern Mexico. Doctors in Peru are largely unaware of how to detect or treat it, meaning that afflicted herders returning to their home country often suffer a progression to more advanced, fatal stages.

This combination of inclement weather, dangerous and exhausting work, and almost total isolation from the outside world makes sheepherding one of the most dangerous occupations in the United States. Though there are no published fatality statistics for sheepherding, at least six sheepherders—Edgar Estrella, Apolinario Quiñones, Edmundo Serva Orihuela, Najario Soto, Carlos Aldana, and Jose Manuel Hilario Hinojo—died between 1995 and 1999 in California alone. Even if we only count two of the six deaths as job related—indeed, the deaths of Najario Soto, who died of exposure, and Edmundo Serva Orihuela, who died of Valley Fever, were definitively work related—the annual fatality rate would still be 80 deaths per 100,000 employees, as there are approximately 500 sheepherders in the state. This is a figure four times the average rate for agricultural industries. It's even greater than that of the American industry with the highest reported fatality rate: mining.

Ranchers do not match herders' heightened risks with heightened care. Instead, ranchers often abandon workers who complain about their problems. One former worker, Lorenzo Mosquera, spoke of a particularly tragic episode: his employer ignored his repeated requests to see a doctor and left him at a local hotel once he could no longer work. Two days later, due to the employer's information, the Immigration and Naturalization Service arrested the herder for being "out of status." Because his boss had kept his visa and passport, Lorenzo could not prove his status, and spent two months in federal prison before being released on the intervention of the Peruvian consulate.

The indifference of Lorenzo's employer is no anomaly. In 2000, Central California Legal Services conducted a survey of sheepherders, and asked what happened when they complained to their employers. Their responses are chilling: "He attacked me and soon he fired me," said one herder. "He fired me from the job, telling me I was a nobody," said another. A third sheepherder was told that he could "die behind the sheep."

As one herder noted: "In Peru, I would make less than 500 soles (about $143) per month for this work. But there, we aren't alone—even in Peru, we don't live like this."

A Federal Fleecing

Perhaps more egregious than the sheepherders' substandard working conditions is the fact that the law facilitates their exploitation: Peruvian sheepherders are legal workers, and it is legal to do these things to them. It is legal to house a herder in a tent. It is legal to give him a shovel instead of a bathroom. It is legal to pay him two dollars an hour and force him to be "on the job" continuously, 24 hours a day, seven days a week. Due to a decades-long relationship between ranchers and federal legislators, federal law books are riddled with rancher-friendly exceptions to national labor standards.

On the most basic level, sheepherders are exempt from the hourly minimum wage of $5.15 to which most Americans are entitled. Instead, herders receive a monthly minimum wage set by the Department of Labor. With the exception of California, North Dakota, and Oregon, this comes out to either $650 or $750 per month. Herders are also exempt from federal regulations that require workers to take rest breaks every several hours. As Department of Labor regulations state, herders can be "on call for up to 24 hours a day, 7 days a week." In California and Nevada, ranchers and officials at state enforcement agencies interpret this to mean that herders can be required to be on-site 24 hours a day, seven days a week.

Compared to other migrant workers—and even other H-2A temporary agricultural workers—housing regulations for sheepherders are effectively non-existent. While regulations for H-2A and other migrant farm workers go into extensive detail about the structure of their housing—specifying everything from ceiling height to the thickness of window mesh—sheepherders can legally be housed in tents "where terrain and/or land regulations do not permit use of other more substantial mobile housing." While federal regulations for H-2A worker housing require that toilets be constructed if public sewers aren't available, sheepherder regulations state that "pits [can be] used for the disposal or burying of excreta and liquid waste" so long as they are "kept fly-tight when not filled in completely after each use." Ranchers and Department of Labor inspectors typically interpret this provision to mean that herders can be supplied with shovels instead of toilets. While H-2A housing regulations closely regulate farm workers' access to cooking facilities (including food refrigeration), federal law allows ranchers to feed herders "salted" unrefrigerated meat when "mechanical refrigeration of food is not feasible."

Not only do H-2A workers lack the right to organize, strike, and bargain collectively—H-2As, like most agricultural workers, are exempt from the National Labor Relations Act (NLRA)—they also lack the ability to switch employers or quit their employment. Their H-2A agricultural guest worker visas prohibit them from working for anyone other than the employer who sponsored their entry. If a herder is assigned to an abusive, exploitative employer, he is not free to quit his job to look for better employment. He is not even free to leave his job site. If a herder were to do any of these things, he could be—and many have been—imprisoned and deported. Lance Compa, writing on behalf of Human Rights Watch, summed up their plight: "H-2A workers are caught in the antithesis of a free labor system, unable to exercise rights of association but also unable to move to another employer to seek better terms."

The wool industry's push to disenfranchise sheepherders continues to this day. While labor advocates like Chris Schneider, managing attorney of Central California Legal Services, repeatedly fail to get an audience with the Department of Labor's Employment and Training Administration (ETA) officials, federal documents show that James Holt, an economic consultant for the Western Range Association (WRA), the leading rancher industry group, has regular meetings and correspondence with ETA officials. This unrestricted access has given the WRA decisive influence over the revision of existing ETA sheepherder regulations. For example, while the WRA was able to convince the ETA to implement a new, streamlined process for requesting additional H-2A sheepherders, archaic provisions—such as those that allow sheepherders to be housed in tents—have remained untouched for decades.

The wool industry's influence is not limited to cabinet agencies. Senator Larry Craig of Idaho—who is pushing to expand the current H-2A program—recently proposed a further decrease in the federally mandated sheepherder minimum wage. If his bill were to pass, it would only add to the decades-long erosion of sheepherders' meager earnings.

One Sheep in the Flock

It is tempting to label the squalor and legal powerlessness experienced by sheepherders as an anomaly, an exception in an otherwise safe agricultural industry with a legally empowered workforce. When we look across American agriculture, however, we can see that exploitation and legal powerlessness are prevailing conditions.

Sheepherders form a small subset of all H-2A agricultural guest workers. Like sheepherders, almost all H-2A guest workers work in physically dangerous sectors of American agriculture. In the 1980s and early 1990s, for example, most H-2A workers entered the sugar industry, harvesting long stalks of cane with razor-sharp machetes—a job so dangerous that it was commonplace for workers to lose fingers during the harvest. Today, the two largest importers of H-2A labor—primarily from Mexico, Guatemala, and other Central American countries—are tobacco farmers and fruit growers. H-2A fruit pickers commonly suffer from falls and exposure to pesticides. And a recent study published by the Journal of Occupational and Environmental Medicine revealed that nearly a quarter of all North Carolina tobacco workers surveyed had suffered from nicotine poisoning, or "green tobacco sickness," at some point during the previous harvest. Combined, tobacco and fruit bring in over half of all H-2A workers.

The use of heavy machinery, exposure to pesticides, and poor access to health care make agriculture generally a high-risk occupation whether one is an H-2A worker or not. While the average fatality rate for all industries in the United States is 4.3 deaths per 100,000 individuals employed, the fatality rate for agriculture is five times higher.

Despite the higher risks associated with their employment, just like sheepherders and other H-2A guest workers, all agricultural workers are subject to a distinctly lower level of legal safeguards than other U.S. workers. Only a minority of agricultural workers—scholars estimate around 35%—are legally entitled to the minimum wage and unemployment insurance, and no agricultural employees receive overtime pay. Also, though agricultural workers are subject to housing standards in the Migrant and Seasonal Agricultural Worker Protection Act, the work site regulations issued by the Occupational Safety and Health Administration for agricultural jobs are cursory at best, only requiring that bathroom and hand-washing facilities be available at job sites. More importantly, since all agricultural workers are exempt from the NLRA, they all lack the right to organize, strike, and bargain collectively with their employers.

While we would normally expect the law to most protect those most in need of protection, with agricultural labor, it does the exact opposite: the more vulnerable the agricultural worker, the less likely he is to be protected, and the more likely he is to be actively restricted by federal standards from taking steps to protect himself. Indeed, when we compare the rights of agricultural workers in general, H-2A workers, and foreign sheepherders, as is done in the table, this pattern is unsettlingly clear.

The Blame Game

On one of my first days interviewing herders in California, I met a man named Aureliano Figueroa, who told me the following story:

One day, I fell sick and my bones ached… and I had a very strong fever. I asked the campero [manager] to visit the doctor. He said, "Go to your tent and don't come out." I asked him [again] and he just gave me three pills and told me, "Go to your tent and don't come out."

And I wanted to see the doctor, but the money wasn't enough. I couldn't leave, anyway, not without the campero's permission. I tried to cure my fever with some plants I picked… a friend of mine showed me how… but I just kept on shaking. It didn't stop until [three days later].

Nowadays I try to keep myself warm, but sometimes during the lambing season you have to be up all night, or so early in the morning that it doesn't matter what you're wearing. I just don't want to get sick again. Maybe the campero would take me to the doctor this time.

Although some might be tempted to attribute Figueroa's suffering to the cruelty of his employer, his experience could only have occurred in the context of a legal system that permitted and encouraged his exploitation. In the wealthiest nation in the world, in the 21st century, this is unconscionable. Sheepherders' abysmal working conditions should be made illegal. They should be able to quit their jobs without fear of imprisonment or deportation. Moreover, sheepherders must be given the right to organize—a right which, like all agricultural workers in the United States, they are currently denied.

Alvaro Bedoya was born in Peru and raised in upstate New York. He recently graduated from Harvard College with a degree in Social Studies, and will enter Yale Law School in the fall of 2004 to study labor and immigration law.