DOL Issues Final Rule Adding Worker Protections to H-2B Program

With an emphasis on practical strategies to improve productivity and performance, and limit potential liabilities, Bulletin to Management™ concisely analyzes new developments in employment and human resources management.

By Laura D. Francis  

The Department of Labor's Employment and Training Administration and Wage and Hour Division Feb. 10 issued a final rule on the H-2B labor certification program for temporary nonagricultural workers that modifies the employer application and recruitment process and adds protections for both H-2B and U.S. workers.

“The H-2B program is designed to help businesses when there is a temporary shortage of U.S. workers,” Labor Secretary Hilda Solis said in a statement.

“The rule announced today will ensure that the program is used as intended by making these jobs more accessible to U.S. workers and providing stronger protections for every worker,”Solis said.

The final rule is scheduled to be published in the Feb. 21 Federal Register.

The H-2B visa program allows the entry of low-skilled, nonagricultural guestworkers into the United States, and is capped at 66,000 visas per year.

The final rule is largely unchanged from a proposed rule issued in March 2011 (62 BTM 91, 3/22/11).

Certification, Not Attestation Model

One of the key changes of the final rule, effective for applications filed on or after April 23, 2012, is to return the program to a certification-based model rather than an attestation-based model, which was adopted in regulations published in late 2008 (59 BTM 411, 12/23/08).

The attestation model required employers to attest that before filing an application to seek H-2B workers, U.S. workers were recruited, and that H-2B workers will be paid a wage equal to or higher than the prevailing wage.

The certification model of the 2012 final rule requires that employers provide evidence of these factors and DOL in turn must certify their existence. DOL said in the final rule that the switch back to certification is intended to reduce fraud and abuse in the program.

The agency said the attestation model is “highly vulnerable to fraud” because any noncompliance will not be discovered until after the employer has been certified and the foreign workers already have begun work. Additional enforcement efforts while retaining the attestation model would be insufficient to combat this problem, DOL said.

Although in the proposed rule it sought comments regarding areas where attestation still may be appropriate, DOL ultimately determined to use only the certification model.

Process Bifurcated Into Registration Process

In addition, the application process will be bifurcated into a registration process—which addresses whether an employer has a temporary need for workers—and the application process—which addresses the analysis of the labor force. Registration lasts for a period of three years, so that employers only would have to undergo the application process in the second and third years, DOL said.

Under the new rule, “corresponding workers”—non-H-2B workers who perform substantially the same work as H-2B workers—must be provided the same rights and benefits as the H-2B workers.

DOL said this means that most incumbent U.S. employees would not have to quit their jobs and reapply in order to receive protections.

Employers also are prohibited from imposing restrictions or obligations on U.S. workers that are not imposed on H-2B workers.

Other worker protections include the requirement that employers contractually prohibit agents and recruiters from charging fees to prospective H-2B workers; a prohibition on employers and recruiters retaliating against workers who file a complaint, exercise their rights, or help other workers to do so; a requirement that employers provide at least 75 percent of the hours promised; and a bar on temporary staffing agencies and job contractors from participating in the program except in narrow circumstances.

By Laura D. Francis  

Text of the final rule is available at http://op.bna.com/dlrcases.nsf/r?Open=lfrs-8rcndy.

A comparison of the previous regulations and the provisions of the final rule is available at http://www.dol.gov/whd/immigration/ H2BFinalRule/H2BSideBySide.htm.