U.S. Dep’t of Labor Announces Final Rule Regarding Wage Rates of H-2B Workers

From the Department of Labor’s News Release:

The H-2B program allows the entry of foreign workers into the U.S. when qualified U.S. workers are not available and when the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The H-2B program is limited by law to a program cap of 66,000 visas per year.

Because the previous administration promulgated H-2B regulations and did not seek comment during the rulemaking process on the methodology used to set wage rates, on Aug. 30, 2010, the U.S. District Court for the Eastern District of Pennsylvania ruled that the regulations issued by the department in 2008 had violated the Administrative Procedure Act. As a result, the court ordered the department to promulgate new rules that comply with the APA on the calculation of the prevailing wage rates in the H-2B program no later than 120 days from the date of the order. The department later requested additional time to extend the comment period and for drafting the rule, and the court extended the department’s time by 21 days.

The final rule requires employers to pay H-2B and U.S. workers recruited in connection with an H-2B job application a wage that meets or exceeds the highest of the following: the prevailing wage, the federal minimum wage, the state minimum wage or the local minimum wage. The final rule also permits the use of private wage surveys in very limited circumstances.

Under the final rule, the prevailing wage would be based on the highest of the following:

  • Wages established under an agreed-upon collective bargaining agreement.
  • A wage rate established under the Davis-Bacon Act or the Service Contract Act for an occupation in an area of intended employment, if the job opportunity is in an occupation for which such a wage rate has been determined.
  • The arithmetic mean wage rate established by the Occupational Employment Statistics wage survey for an occupation in an area of intended employment.

The new wage rates will apply to wages paid for work performed on or after Jan. 1, 2012. In addition, for a period of 60 days after the publication of the final rule, the department will welcome information from the public in order to gather data regarding the feasibility and implementation of phasing in the new prevailing wages.

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