Oct 26

Why a Sheepherder Shouldn’t Be Sheepish About Suing His Employer

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Sheepherding – whether it means preventing sheep from wandering away, protecting them against predators and poisonous plants, or just feeding them – is one of the hardest jobs in America. Most of the nation’s sheepherders work right here in California.1 Unfortunately, many ranchers don’t treat sheepherders much better than they treat sheep. Many ranchers grossly underpay sheepherders, make them work through breaks, and house them in trailers without running water. If you are a sheepherder, you have rights. California law guarantees sheepherders special minimum wage rates, meal and rest breaks, and living conditions.

I. The Unique Minimum Wage Scheme for Sheepherders

For a sheepherder who works a regularly scheduled 24-hour shift on a seven-day-a-week “on-call” basis, a rancher may either pay either the hourly minimum wage for all hours the sheepherder works (currently $9.00 per hour) or whatever monthly minimum wage the Industrial Welfare Commission adopts (currently $1,200 per month).2 But a sheepherder who performs non-sheepherding or non-agricultural work on any workday is entitled to the hourly minimum wage. In any event, a sheepherder’s earnings aren’t subject to offset for any meals or lodging that the employer provides.3

Sheepherders need sheep shears. If a rancher requires a sheepherder to use shears or any other tools or equipment, or the sheepherder needs them to do his job, the rancher must provide and maintain the tools and equipment.4 But a rancher can require a sheepherder whose wages are at least twice the hourly or monthly minimum wage (i.e., $18.00 per hour or $2,400 per month) to provide and maintain any hand tools or equipment that the trade or craft customarily requires.5 So if a sheepherder makes $2,400 per month and needs a crook, flail, dog whistle, or some other tool that sheepherding customarily requires, he might have to buy it himself.

Of course, most ranchers won’t pay a sheepherder anywhere near $18.00 per hour or $2,400 per month. The average rancher will thus have to bear the cost of providing and maintaining necessary tools and equipment. Generally, the cost of any tools or equipment that the employer provides aren’t deductible. But a rancher may either (1) require the sheepherder to make a reasonable deposit as security for the return of those items upon completion of the job or (2) obtain the sheepherder’s prior written consent to deduct the cost of any such item from his last paycheck if he fails to return the item (though not if the item has normal wear and tear).6

II. Counting Sheep: Rest and Other Leisurely Activities

Sheep - Counting Sheep

Sheepherding is grueling work and involves more than just watching sheep munch in the meadow. Thus, a rancher generally can’t employ a sheepherder for a work period of more than five hours without providing him with a meal period of at least 30 minutes, except that when a work period of not more than six hours will complete a day’s work, they can agree to waive the meal period.7 Even when a sheepherder works more than six hours in one day or refuses to waive a meal period, a rancher doesn’t have to provide him with a meal period if he’s tending flock alone, and no other sheepherder is available to relieve him of his duty.

Likewise, every rancher must, to the extent practicable, authorize and permit (not ensure) all sheepherders to take rest periods. The rest period, insofar as is practicable, must be in the middle of each work period. The rest times must be based on the total hours of daily work at the rate of 10 minutes net rest time per four hours, or major fraction thereof, of work. But a rancher doesn’t have to authorize a rest period for a sheepherder whose total daily work time is less than three and one-half hours.8 Even when a sheepherder is working, however, he’s entitled to a rest break of sorts. If he can sit down while working on or at a machine, the rancher must provide him with suitable seating.9

III. Home on the Range: Housing and Living Conditions

Traditionally, sheepherders slept in tents and cooked lamb meat over camp fires. Today, any rancher who lodges a sheepherder, whether in mobile or fixed housing, must make sure the housing includes portable or non-portable toilets and bathing facilities, heating, indoor lighting, potable hot and cold water, adequate cooking facilities and utensils, and a working refrigerator for perishable foodstuffs.10 The refrigerator can be butane or propane gas refrigerator, but if it needs repair or replacement, the rancher can provide an ice chest for up to one week if he delivers enough ice to continuously maintain a temperature that will slow spoilage and ensure food safety.11

Sheepherding is a lonely life. Sheepherders spend long periods of time engaged in open-range sheepherding – i.e., sheepherding on wide expanses of land that, while unsuitable for cultivation because it is rocky, semi-arid, or otherwise poor, produces native forage for animal consumption.12 For that reason, every rancher must provide a sheepherder with all of the following at each worksite: regular mail service; phone or radio for emergencies; visitor access to the housing; and, upon a sheepherder’s request and to the extent practicable, weekly access to transportation to and from the nearest locale where shopping, medical, or cultural facilities and services are available.13

  1. Jennifer Luden, All Things Considered, Sheepherding Remains a Lonely Life, National Public Radio, Washington, D.C. (July 10, 2005). 

  2. Lab. Code §2695.2(a)(1). 

  3. IWC Wage Order 14-2001(4)(E). 

  4. Lab. Code §2695.2(b)(1). 

  5. Id

  6. Lab. Code §2695.2(b)(2). 

  7. Lab. Code §2695.2(c). 

  8. Lab. Code §2695.2(d). 

  9. Lab. Code §2695(e). 

  10. Lab. Code §2695.2(f); IWC Wage Order 14-2001(10)(G), (H). 

  11. Id

  12. IWC Wage Order 14-2001(2)(J). 

  13. Lab. Code §2695.2(g). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.