Employer’s Quest for Updated Seasonal Worker Wage on Hold (1)

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By Laura D. Francis

A forestry company can’t force the Labor Department to allow it to pay the lower wage to seasonal foreign workers that other employers in the area are paying, a federal judge in Mississippi ruled.

Faith Forestry Services Inc. believes it’s being penalized for applying for its H-2B workers too early in the year. As a result, the company is paying its workers between $19.71 and $26.08 per hour, while employers that applied later in the year are paying their workers only $15 per hour, according to court records.

The difference stems from Faith Forestry applying for the workers and receiving a prevailing wage determination from the DOL in April 2017, even though the workers didn’t start until October. The DOL recalculated the prevailing wage in July, and so employers that applied later in the year were able to pay the newer, lesser amount.

The labor certification issued by the DOL states that the wage the employers must pay “equals or exceeds the highest of the most recent prevailing wage for the occupation that is or will be issued by the Department to the employer for the time period the work is performed,” Faith Forestry said.

Asking the DOL to require the most recently calculated prevailing wage regardless of when employers apply is a “novel” interpretation of the labor certification language that “would result in a substantial and sweeping change in the way the H-2B visa program is administered,” Judge Sharion Aycock of the U.S. District Court for the Northern District of Mississippi said. It “would essentially create a rolling prevailing wage with employers required to update their wages based on the most recent wage determination even if their H-2B visa workers were already in place and working at a different wage,” she said.

Because of the potentially broad implications of the case, it’s premature for the court to order the DOL to allow Faith Forestry to pay $15 per hour, Aycock said. However, she agreed to an accelerated schedule for the rest of the case so that the issues can be fleshed out quickly.

Visas Increasingly Popular

H-2B visas, which have become increasingly popular in recent years, are used in industries such as landscaping, forestry, hospitality, and construction. For the season starting April 1, employers submitted petitions seeking far more workers than the 33,000 visas available, prompting U.S. Citizenship and Immigration Services to hold its first-ever H-2B lottery.

Employers participating in the H-2B visa program must pay the prevailing wage for the area to prevent displacement of U.S. workers and harm to their wages and working conditions. The requirement is part of the labor certification that the DOL must issue before employers can petition the USCIS for the visas.

Lawmakers currently are considering whether to increase H-2B visa numbers as part of an upcoming omnibus spending package.

The case is Faith Forestry Servs., Inc. v. DOL, 2018 BL 92523, N.D. Miss., No. 1:17-cv-00214, 3/19/18.

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