Third Circuit Upholds New H-2B Prevailing Wage Calculations

Employers seeking foreign workers through the H-2B visa program will have a new prevailing wage determination pursuant to a 2011 regulation. Concerned employers brought suit against the Department of Labor (DOL) challenging the DOL’s authority to create and implement the rule, citing violations of the Administrative Procedure Act and the Regulatory Flexibility Act. The 2011 Wage Rule abandoned the previous methodology of calculating wages in favor of choosing the highest wage among a collective bargaining agreement, a rate under either the Davis-Bacon Act or McNamara-O’Hara Service Contract Act, or applicable Occupational Employment Statistics. The Third Circuit found the Department of Labor had not violated its authority to assist the Department of Homeland Security with labor certifications as notice of the rule and sufficient reasoning for the new methodology were provided to the public.

See 20 C.F.R. § 655.10; La. Forestry Ass’n v. Sec’y United States Dept. of Labor 2014 U.S. App. LEXIS 2617.

(Development authored by Samantha Serna)