Sheepherder Asks Nev. Justices To OK Pay For On-Call Hours – Law360
Nevada's Supreme Court should conclude that the definition of work under state law is similar to that under federal labor law, a sheepherder argued Monday, saying the federal definition would require a rancher association to pay him for all 24 hours he was on call and couldn't leave work property.
In a 60-page brief, sheepherder Abel Cántaro Castillo told the Nevada Supreme Court to clarify that the definition of work under Nevada's Minimum Wage Amendment encompasses time that a worker spends waiting while on call. Cántaro Castillo argued that the court should look to the Fair Labor Standards Act to determine what work means under the state's minimum wage law.
Under the FLSA, employees can be paid for waiting time that an employer has control over. Cántaro Castillo said that the definition of work under Nevada's Minimum Wage Amendment covers time spent on call that should be compensated.
Cántaro Castillo worked on an H-2A visa for the Western Range Association at El Tejon ranch, a member of the association, according to court filings.
According to the U.S. Department of Labor's website, an H-2A visa allows workers from another country to temporarily perform agricultural work in the United States. The Western Range Association is a nonprofit association made up of ranchers from 13 Western states that helps "facilitate the employment of H-2A foreign workers for herding or production of livestock on the range," according to its website.
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Christine E. Webber, who represents Cántaro Castillo, said in a statement Monday that "we believe that Nevada law clearly directs that the definition of 'work' under Nevada's minimum wage amendment follows the federal Fair Labor Standards Act definition of work."
Per the definition of work under FLSA, "all of plaintiff's time out on the range as a herder was time that was for the benefit of his employer, because he was not free to leave, he was not free to spend time as he would wish, and under the requirements of the job, he had to be tending to the sheep 24/7. He should be paid minimum wage for each hour worked," Webber said.
Abel Cántaro Castillo is represented by Christine E. Webber of Cohen Milstein Sellers & Toll PLLC; Mark R. Thierman, Josh Buck and Leah Lin Jones of Thierman Buck Law Firm LLP; and Alexander Hood of Towards Justice.
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