DOL Postpones H-2B Wage Rule Due to Pending Legal Challenges

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By Amber McKinney  

The Labor Department's Employment and Training Administration Sept. 22 announced a 60-day postponement of the effective date for a final rule that addresses the calculations used to set wage rates for foreign workers on H-2B temporary nonagricultural visas.

According to DOL, the delay is necessary because of two legal challenges to the final H-2B wage rate regulation, one filed in federal court in Louisiana and the other in federal court in Florida.

“The delay will permit the various courts involved in ongoing litigation surrounding the implementation of the rule to determine the appropriate venue for the resolution of all claims and allow the department to avoid the possibility of administering the H-2B program under potentially conflicting court orders,” the department said.

“In consideration of these pending challenges, the department determined under section 705 of the Administrative Procedure Act that the interest of justice would be served by postponing the effective date of the rule from Sept. 30, 2011, until Nov. 30, 2011,” DOL said. A Federal Register notice to that effect will be published the week of Oct. 3, the department said.

ETA published the contested final rule in the Aug. 1 Federal Register (76 Fed. Reg. 45,667; 29 HRR 848, 8/8/11).

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

Wage Rule Faced Earlier Legal Challenge.

The two pending suits follow another filed over the final H-2B wage rule, which initially was published in the Jan. 19 Federal Register (76 Fed. Reg. 3,451; 29 HRR 67, 1/24/11).

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 January 2011 rule outlines that the prevailing wage should be based on the highest of three measures: wages established under a collective bargaining agreement; a wage rate established under the Davis-Bacon Act or the Service Contract Act for the occupation in the area of intended employment; or the mean wage rate established by the Occupational Employment Statistics wage survey for that occupation in the area of intended employment.

The Jan. 19 rule set the effective date as Jan. 1, 2012, but ETA changed the date in response to a court ruling (Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Solis, E.D. Pa., No. 2:09-cv-00240) that the original effective date's almost one-year delay was not a “logical outgrowth” of the proposed rule and therefore violated the Administrative Procedure Act.

The Aug. 1 final rule promulgated in response to the lawsuit set the new effective date for the wage rule as Sept. 30 without altering the substance of the rule.

Two Pending Suits Prompted Rule Postponement.

Meanwhile, the first of the pending suits was filed Sept. 7 in the U.S. District Court for the Western District of Louisiana by a group of companies that use the H-2B visa program, including the Louisiana Forestry AssociationCrawfish Processors Alliance, and others (Louisiana Forestry Ass'n Inc. v. Solis, W.D. La., No. 1:11-cv-01623, complaint filed 9/7/11).

According to the complaint, the new wage rule “imposes immediate retroactive, substantive, and burdensome changes to the current wage obligations, requirements and relied upon expectations of employers who employ H-2B foreign and certain similarly employed U.S. workers.”

The second suit was filed Sept. 21 by the New York Thoroughbred Horsemens Association, Professional Landcare Network, Lake Coward Seafood Corp., and others.

The plaintiffs in the suit (Bayou Lawn & Landscape Servs. v. Solis, N.D. Fla., No. 3:11-cv-00445, complaint filed 9/21/11) sought both a temporary restraining order and a preliminary injunction to block the H-2B wage rule from taking effect.

By Amber McKinney  


Text of the final rule can be accessed at http://op.bna.com/dlrcases.nsf/r?Open=amky-8k8rsb .