Contributed by Koby Polaski, Senior Attorney
The recent litigation and ongoing turmoil over the promulgation
of new regulations governing the H-2B program are enough to make anyone’s head
spin.
It all started in 2011 when the Department of Labor (DOL) issued
a proposed rule that would change the wage methodology it uses to calculate
H-2B prevailing wages. The 2011 rule came in in response to a ruling by the
U.S. District Court for the Eastern District of Pennsylvania in Comite de Apoyo
a los Trabajadores (CATA) v. Solis that ordered the DOL to promulgate new rules
concerning the H-2B prevailing wage calculation within 120 days. Under the 2008
regulations, the DOL based prevailing wage determinations on four tier levels
that link skill levels to Occupational Employment Statistics (OES) wage
surveys. The proposed wage rule requires instead that the mean of the OES wage
rates be used to calculate the prevailing wage.
The 2011 regulations have to be implemented, however, because
they were enjoined by the U.S. District Court for the Northern District of
Florida in Bayou Lawn & Landscape Services v. Hilda L. Solis. Bayou went
before the 11th Circuit Court of Appeals, which affirmed the injunction and
held - in Bayou Lawn and Landscape Servs v. Sec’y of Labor - that the DOL lacks
independent rule-making authority under the Immigration and Nationality Act to
issue legislative regulations implementing its role in the H-2B program.
As a result of the 11th Circuit’s ruling, the DOL and DHS
together issued an Interim Final Rule revising the prevailing wage methodology
in the H-2B program. The fact that both agencies together promulgated the final
rule cured the defect identified by the 11th Circuit when it affirmed the
injunction.
More recently, on January 17, 2014, the Consolidated
Appropriations Act, 2014 was enacted. For the first time since the 2011
regulations, DOL’s appropriations did not prohibit implementation or
enforcement of the 2011 wage rule, which means that the DOL can move forward to
implement the final rule from 2011. Additionally, on Feb. 5, 2014, the 3rd
Circuit held that DOL has authority to promulgate rules concerning the
temporary labor certification process in the context of the H-2B program and
that the 2011 rule was validly promulgated pursuant to that authority.
Because of so much litigation and confusion, DOL announced in
March that recent developments in the H-2B program require consideration of the
comments submitted in connection with the 2013 Final Interim Rule and that
further notice and comment is appropriate. So DOL will now engage in further
notice and comment rule-making in order to move toward implementation of the
2011 wage rule. In the meantime, DOL will continue to employ the H-2B wage methodology
using the mean wage rate as the proper baseline for setting prevailing wage
rates.
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