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...
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).
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.
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.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)