Interim Final Rule Issued on Prevailing Wages for H-2B Program

May 22, 2013
The U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS) issued a joint interim final rule regarding prevailing wages for the H-2B guestworker program.  The rule establishes a new methodology for calculating prevailing wages under the H-2B low-skilled, nonagricultural guestworker program.  It took effect on April 24, the date it was published in the Federal Register. According to the rule, DOL will now use either the Occupational Employment Statistics (OES) wage survey, collective bargaining agreements, the Davis-Bacon Act (DCA), the Service Contract Act (SCA), or employer-provided surveys to determine H-2B prevailing wages.  In addition, the prevailing wage will be based on the arithmetic mean wage listed in the OES survey for all persons in the occupation in question.  Both DOL and DHS state that the OES survey is the most appropriate determinant of the prevailing wage because it is “among the largest, most comprehensive, and continuous statistical survey programs of the Federal Government.”   The OES survey collects data from more than 1 million establishments and provides salary information for all occupations in the Office of Management and Budget’s standard occupational classification system.  The rule also permits, but does not require, employers to use the DBA or SCA prevailing wage (or higher) rate, if applicable, and authorizes employers to use higher DBA or SCA rates if they choose to do so.  However, employers must comply with the DBA or SCA, whichever is applicable, if H-2B workers are working on a DBA- or SCA-covered contract.  The process is different for H-2B workers who are subject to collective bargaining agreements.  Under the rule, DOL will use the prevailing wage set by the applicable collective bargaining agreement where that agreement was reached after negotiations between the union and the employer. DOL may also use employer-provided wage surveys to determine the prevailing wage rate if the data is collected within 24 months of the date of submission.  If used, employers must also provide specific information about the survey methodology so that DOL may ensure data accuracy and validity. For additional information and assistance, employers may use DOL’s H-2B e-laws advisor.  For general immigration compliance resources, please visit AGC’s Labor & HR Topical Resources webpage.  The primary category is “Other Legal Resources” and the secondary category is “Immigration and Employment Eligibility.”
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