ND ranchers prevail in H-2A labor case
In 2018, the Kenners successfully challenged a U.S. Department of Labor rule to make it more practical for them to hire a foreign seasonal farm worker through the H-2A Temporary Agricultural Workers program.
LEEDS, N.D. — The Kenner family has a loyal team of local employees to make their cattle and farming operations work. The problem is, sometimes they just can’t find enough of them.
In 2018, the Kenners successfully challenged a U.S. Department of Labor rule to make it more practical for them to hire a foreign seasonal farmworker through the H-2A Temporary Agricultural Workers program. The Kenners think the program could be simplified for farms and ranches.
Roger Kenner and his daughter, Erika, and their herdsman Bryan Leapaldt are the management team for Kenner Simmental Ranch at Leeds in northeast North Dakota.
Separately they operate as a commercial grain farm. The two enterprises employ about 10 people — half with each.
Roger, 70, manages the farming business. Erika, 41, and Leapaldt keep their eyes on the cattle operation, which has about 450 registered cows. Erika focuses on breed data reporting, as well as promotion and marketing.
Hard to find
In April 2017, they had a job opening. The Kenners advertised locally for a position but were unable to find a qualified local applicant, even though they say they pay “very fairly,” and offer health insurance to the worker’s spouse and family.
The Kenners posted announcements through Job Service of North Dakota. They used an agricultural hiring agency out of Nebraska who couldn’t find someone to go to a farm so far north (70 miles to Canada) and 30 miles from a major town at Devils Lake, N.D. They filled in the crew with retirees and high schoolers for a time, but were unable to give everybody time off when they wanted or needed it.
Some job applicants lacked the needed farm experience, especially involving running tractors and other machinery.
Some seemed to be applying as a formality to stay eligible for unemployment benefits and would skip the interview appointments without explanation. Cattle work is “very manual,” Erika says, and sometimes requires long or irregular hours, including weekends. “When you’re making hay, you’ve got to make hay when the weather is good. When you’re calving, those cows really dictate what your day is going to be like.”
Trying the H-2A
The H-2A Temporary Agricultural Workers employees classically come for either summer or winter seasons.
The winter season sets up for cattlemen, Erika says. About April 1, it shifts typically to a summer season, which was set up for grain farmers and custom combiners.
The Kenners had used the H-2A system briefly in 2011 but had gone back to local workers.
The H-2A program has lots of paperwork and costs. But the summer-winter rotation often doesn’t work.
“The time schedule is a problem for ranching because in the summer, there’s hay to make, breeding — still things going on,” Erika says. The dates are also designed to work with winter calving, but there are operations that calve as late as June.
One of the Kenner’s neighbors — about 10 miles away — had a South African H-2A employee for the summer who had served their maximum seasonal work period and had to rotate to a winter position with someone else. (An exception is for livestock on the range, such as sheep and goat operations, who are allowed to use H-2A workers year-round, according to a USDA website.)
The Kenners hired the man for the “winter season,” starting Dec. 1, 2017. The worker came through USA Farm Labor Inc., of Waynesville, N.C., and went back to the neighbor in April 2018.
In January 2018, the Kenners started applying for a new H-2A summer employee, but on March 1, 2018, they were denied. Unable to convince Labor officials they needed the employee year-round, they hired lawyer Wendel V. Hall of Washington, D.C., to challenge the decision.
“We had to prove that we had an absolute need for a year-round worker, which to me is crazy,” Erika says. “Anyone who knows a ranch or a farm (knows) there’s work to be done all year. There’s still grain to haul, still maintenance on machinery.”
The case was scheduled for a telephone hearing before a U.S. administrative law judge in Washington in April 2018. The Kenners incurred thousands in legal fees and preparation time. Two hours prior to the hearing, the department called to settle the case.
The Department of Labor lawyers would give the Kenners their summer worker but wanted the worker off for two consecutive months in a year. The Kenners insisted on splitting the furlough — one month each in November and in April — the two months that are least busy on their ranch.
3 years, 3 months
Currently, workers can stay in the U.S. for three years — shifting seasonally among employers — but then go back for three months. They can reapply for their visa and come back, but they can be denied a visa. Visas have become tighter with current immigrant restructuring in the Trump administration.
Erika wonders if the system will ever permanently change to allow a worker in the country for 12 months at a time, for everybody. “I do not understand the hangup of having to have the seasons, to be honest,” Erika says.
On Dec. 15, 2019, they hired Vasyl Ryabiy, a Ukrainian with a young family. He had been working on a grain farm elsewhere in North Dakota.
Ryabiy did not grow up on a farm but has an ag business education, and says he’s happy to get the experience. “In America, it’s a high level,” he says, of the farming. “The farm is doing right, and trying to do the best every time. I really like that.”
Roger Kenner says the family has spoken with U.S. Rep. Kelly Armstrong, R-N.D., about improving the H-2A program. Roger says he thinks the congressman has the energy to help make the rules simpler and more commonsense.
“It’s kind of an uphill battle, but I think to be moved out of the Department of Labor and into the Department of Agriculture,” Erika says. “Right now the (Labor Department) doesn’t understand what we go through out here, what our needs are.”
A higher level
Kenner Simmental Ranch has a long, strong history.
Roger started farming in 1963 as an FFA member. He graduated high school in 1967. He went on to earn a degree in agricultural economics from North Dakota State University in 1971. In 1976, he started selling purebred Simmental bulls through private treaty sales off the farm. They started holding public annual production sales in 1996.
Roger and his wife, Jeanette, have three children. Erika, born in 1978, was oldest and is the only one still involved in the ranch.
Like her father, she was a state FFA Star Farmer and went on as a finalist for the American FFA Star Farmer award competition. After earning degrees animal science and communications at NDSU. She worked for the American Simmental Association before joining the ranch as a full-time partner in 2007. Erika recently completed six years on the organization’s 17-member board. Roger was on the board in the 1990s and served as its chairman.
Erika recently married Tyler Lannoye, a pharmacist who works at Belcourt, N.D.
“It’s hard sometimes in families to keep the multi-generations going,” Roger says. “As your children grow up they have so many opportunities, so many other things they want to do. And, frankly, not everyone’s cut out to be a farmer or rancher. It’s a nice lifestyle, but it’s not an easy business.”