FORTUNE -- The imagery associated with the American cowboy includes 10-gallon hats, lassos, and sunset rides on the back of a loyal steed -- he’s an avatar of laid-back life on the open plain. But a more realistic portrait might include hourly pay that’s lower than minimum wage and the absence of a working toilet.
The latter picture is what herders will try to paint on Tuesday when a judge for the U.S. Court of Appeals for the District of Columbia Circuit hears their lawsuit challenging the Department of Labor rules dictating herders’ working conditions and wages.
The lawsuit, which was filed in October 2011, stems from the Department of Labor’s decision to file special procedures for employers interested in hiring herders under the H-2A visa program for guest agricultural workers. The special procedures implemented in 2011 reflect the “unique characteristics” of the open range production of livestock, according to the DOL, and differ from those regulating other agricultural workers.
The DOL’s special procedures say that herders are expected to be on call 24/7, and, because of the mobile nature of their profession, the employer-supplied housing need not have electricity or running water. Sheep herders, goat herders, and cattle hands earn a prevailing wage that varies state to state, but it is decidedly low everywhere, says Julie Murray, a staff attorney for Public Citizen Litigation Group who will argue the plaintiffs' case on Tuesday. In Colorado, for instance, the DOL has set the prevailing wage at $750 per month for goat and sheep herders; $875 per month for open range cattle hands. “[Goat and sheep herders] are working actively 80 hours a week,” Murray says. “That comes out to be $2.34 an hour."
The DOL's special regulations for herders have resulted in “deplorable conditions” for workers in this field; conditions that are drastically worse than what other farm workers face, according to a 2010 survey of 100 herders in Colorado by the Migrant Farm Workers Division of Colorado Legal Services. More than 70% of respondents reported not having a single day off over the course of a year, 55% said they had no access to light or electricity, and roughly 70% said they never had access to a working toilet.
The four herders who filed the suit against the DOL all hail from Western states. Three are permanent U.S. residents, and one is a work-authorized alien. They contend that the special procedures violate the Administrative Procedure Act since the DOL never provided notice and an opportunity for interested parties to comment. The notice and comment period allows the public to weigh in on the agency’s proposed rules, and the DOL must consider those views. “That’s the kind of procedure that gives people like our clients a voice in the process,” Murray says.
The plaintiffs also argue that the low wages employers can legally pay herders adversely affects U.S. workers, which violates the Immigration and Nationality Act. The plaintiffs claim that the DOL’s special procedures for herders has depressed the wages of U.S. workers because employers have no incentive to pay American or authorized immigrant workers a living wage since they can easily hire a foreign worker for less.
Two agriculture industry groups, Mountain Plains Agricultural Services and the Western Range Association, intervened in the case on behalf of the DOL and moved to dismiss the case, arguing that the plaintiffs lacked standing. A judge sided with the industry groups in February 2013 and dismissed the case after finding that the plaintiffs did not have an adequate interest at stake since they were not currently working as herders.
The plaintiffs have appealed that decision and will argue on Tuesday that they do indeed have an interest at stake since they want to work as herders but can’t because of the profession’s low pay.
“It’s the DOL’s rules that permit employers to do this,” Murray says. Employers could pay more voluntarily, but -- from their perspective -- it makes little economic sense when they can get away with paying less, she says. “The DOL set the floor, but it also set the ceiling.”