The Department of Labor (“DOL”) must issue reasoned explanations for removing a provision from the regulations mandating that an employer seeking H-2B visas for temporary foreign workers contact unions “in circumstances where it is appropriate for the occupation and customary to the industry.” When promulgating new regulations in 2008, the DOL deviated from its previous requirement that employer’s applying for H-2B authorization contact unions “appropriate to the occupation,” to a regulation which only required employers already party to a collective bargaining agreement to contact the union. An agency final rule that deviates significantly from established practice must include an examination of the fact and rational explanation for the change to avoid a finding that the change is arbitrary and capricious. The Court determined that the change to the union provision, among others, was arbitrary for lack of appropriate reasoning. Comité de Apoyo a los Trabajadores Agricolas v. Solis, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010); see also Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 60 C.F.R. §§ 655-66 (2008).
20 C.F.R. § 655 & 29 C.F.R. § 503 Final Rule
In response to Solis, the DOL issued a new regulation, to take effect April 23, 2012, providing more specific circumstances under which an employer was obligated to contact a labor union. The new regulation also shifted the burden to the State Workforce Agency (“SWA”) to contact unions when the labor in question is typically unionized.. In an effort to increase H-2B worker protections, and therefore “ensure that the employment of H-2B workers does not adversely affect the wages and working conditions of U.S. workers,” the regulation also includes reimbursement for visa and travel fees, as well as a guarantee to give three fourths either of the promised full time labor or payment if there is no work to be done. Furthermore, the regulation changes the H-2B procedure from an attestation model (where the employer merely attests to the wages, hours and availability of US citizens for a job) to a certification model (where the employer must certify these factors by providing evidence). Temporary Employment of Foreign Workers in the United States 20 C.F.R. § 655 (2012); Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 77 FR 10038 (Feb. 21, 2012) (to be codified at 29 C.F.R. part 503) (2012); see also Laura D. Francis, DOL Issues Final Rule Adding Worker Protections to H-2B Program, Bloomberg BNA (Feb. 14, 2012) http://www.bna.com/dol-issues-final-n12884907869.
(Development authored by Leila Higgins)