2011-8968. Application of the Prevailing Wage Methodology in the H-2B Program

AGENCY:

Employment and Training Administration, Department of Labor.

ACTION:

Notice.

SUMMARY:

On January 19, 2011, the Department of Labor (Department) published a final rule, Wage Methodology for the Temporary Non-agricultural Employment H-2B Program (Wage Final Rule),^[1] promulgating a new prevailing wage methodology, as proposed in the Department's October 5, 2010 Notice of Proposed Rulemaking (NPRM). The prevailing wage methodology set forth in the Wage Final Rule applies to wages paid for work performed on or after January 1, 2012. Employers whose work commences in 2011 and continues into 2012 will have to pay a prevailing wage determined under the new prevailing wage methodology for the work performed in 2012. In order to ensure that employers accurately attest to their need to pay a different wage when the Wage Final Rule is effective, the Department has amended the ETA Form 9142, Application for Temporary Employment Certification, Appendix B.1, to reflect the employer's obligation to pay at least the highest of the most recent prevailing wage that the Department issues to the employer and is in effect at the time the work is performed.

DATES:

This Notice is effective on April 14, 2011.

FOR FURTHER INFORMATION CONTACT:

William L. Carlson, PhD, Administrator, Office of Foreign Labor Certification, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210; telephone: [phone] (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

On August 30, 2010, the U.S. District Court in the Eastern District of Pennsylvania in Comite´ de Apoyo a los Trabajadores Agricolas (CATA) v. Solis, Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010), ordered the Department to “promulgate new rules concerning the calculation of the prevailing wage rate in the H-2B program that are in compliance with the Administrative Procedure Act no later than 120 days from the date of this order.” ^[2] The Court ruled that the Department had violated the Administrative Procedure Act when it did not adequately explain its reasoning for using skill levels as part of the H-2B prevailing wage determinations, and when it failed to consider comments relating to the choice of appropriate data sets in deciding to rely on data from the Bureau of Labor Statistics' Occupational Employment Survey (OES) rather than wage rates established by the Davis-Bacon Act (DBA) and McNamara O'Hara Service Contract Act (SCA) in setting the prevailing wage rates.

In order to comply with the Court-mandated deadline, on October 5, 2010, the Department issued an NPRM, Wage Methodology for the Temporary Non-agricultural Employment H-2B Program, 75 FR 61578, Oct. 5, 2010. The NPRM proposed to revise the methodology by which prevailing wages are determined in the H-2B program. The Department issued a Final Rule on January 19, 2011. In the Wage Final Rule, the Department acknowledged that employers already may have made contractual arrangements based on the wage methodology in place before the issuance of the Wage Final Rule and, in order to provide employers with sufficient planning time and to minimize disruption, the Department delayed implementation “so that the prevailing wage methodology set forth in this Rule applies only to wages paid for work performed on or after January 1, 2012.” 76 FR 3452, 3462, Jan. 19, 2011.

The Department will require all employers who apply for an H-2B labor certification (or on whose behalf an H-2B labor certification is filed) after the effective date of this Notice to agree, as a condition of receiving the H-2B labor certification, to pay the prevailing wage rate in effect for the period of work encompassed by their application. Since the wages resulting from the Wage Final Rule's methodology will be different from the wages under the current methodology, this may result in two wage rates being applicable to a single application. Because many employers will apply for H-2B workers for periods of up to 10 months, applications covering work to be performed both before and after January 1, 2012, could now begin to be filed.

Therefore, to ensure that an employer agrees to pay the prevailing wage rate in effect for the period of work encompassed by their application, the Department has received approval of a revised Appendix B.1 (Office of Management and Budget Control Number 1205-0466) of the Application for Temporary Employment Certification, which the employer must sign and submit with its filed Application signifying its agreement to the condition above. The revised form follows this Notice. As of the effective date of this Notice, the Department will require this amended Appendix B.1 to be submitted with an Application for Temporary Employment Certification in order to ensure the employer attests to these wage obligations. Where the employer fails to submit the signed correct Appendix B.1 and/or where necessary, the National Processing Center will send the employer a Request for Information requesting the submission of the revised Appendix.

Persons are not required to respond to this collection of information unless it displays a currently valid OMB control number. Respondent's reply to these reporting requirements is mandatory to obtain the benefits of temporary employment certification (Immigration and Nationality Act, Section 101(a)(15)(H)(ii)). Public reporting burden for this collection of information is estimated to average 2 hours 10 minutes per response for H-2A and 2 hours 45 minutes for H-2B, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate to the Office of Foreign Labor Certification, U.S. Department of Labor, Room C4312, 200 Constitution Avenue, NW., Washington, DC 20210. Do NOT send the completed application to this address. All of the forms that comprise this collection of information can be found at http://www.foreignlaborcert.doleta.gov/​form.cfm.

Signed in Washington, DC, this 8th day of April 2010.

Jane Oates,

Assistant Secretary, Employment and Training Administration.

Footnotes

1.  Wage Methodology for the Temporary Non-agricultural Employment H-2B Program, 76 FR 3452, Jan. 19, 2011.

2.  The Court later extended the deadline for the publication of the Wage Methodology for the Temporary Non-agricultural Employment H-2B Program Final Rule until January 18, 2011. CATA v. Solis, Civil No. 2:09-cv-240-LP, 2010 WL 3431761, Oct. 27, 2010.