2011-25302. Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Postponement of Effective Date; Impact on Prevailing Wage Determinations

AGENCY:

Employment and Training Administration, Wage and Hour Division.

ACTION:

Guidance.

SUMMARY:

The Department of Labor (Department) recently postponed the effective date of the Wage Methodology for the Temporary Non-agricultural Employment H-2B Program Final Rule, January 19, 2011 (the Wage Rule), to November 30, 2011, due to pending legal challenges, pursuant to the Administrative Procedure Act. This document provides guidance to the employers who have received supplemental wage determinations based on the new prevailing wage methodology set forth in the Wage Rule, as to the prevailing wages that would apply before and after the new effective date of November 30, 2011.

DATES:

This guidance is effective September 30, 2011.

FOR FURTHER INFORMATION CONTACT:

For further information contact William L. Carlson, Ph.D., Administrator, Office of Foreign Labor Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210; Telephone [phone] (this is not a toll-free number). For further information on Wage and Hour, contact Mary Ziegler, Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-3510, 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:

The Department published the Wage Rule on January 19, 2011, 76 FR 3452. The Wage Rule revised the methodology by which we calculate the prevailing wages to be paid to H-2B workers and United States (U.S.) workers recruited in connection with a temporary labor certification used in petitioning the Department of Homeland Security to employ a nonimmigrant worker in H-2B status. The Department originally set the effective date of the Wage Rule for January 1, 2012. However, due to a court ruling that invalidated the January 1, 2012 effective date of the Wage Rule,^[1] we issued a Notice of Proposed Rulemaking (NPRM) on June 28, 2011, which proposed that the Wage Rule take effect 60 days from the date of publication of a final rule resulting from the NPRM. 76 FR 37686, June 28, 2011. After a period of public comment, we published a Final Rule on August 1, 2011, which set the new effective date for the Wage Rule of September 30, 2011 (the Effective Date Rule).

Both the Wage Rule and the Effective Date Rule recently were challenged in two separate lawsuits ^[2] seeking to bar their implementation. In consideration of the two pending challenges to the Wage Rule and its new effective date, and the possibility that the litigation will be transferred to another court,^[3] the Department issued a final rule published in the Federal Register on September 28, 2011, postponing the effective date of the rule from September 30, 2011, until November 30, 2011, in accordance with the Administrative Procedure Act, 5 U.S.C. 705.

In anticipation of the September 30, 2011 effective date, the Office of Foreign Labor Certification issued supplemental wage determinations based on the new prevailing wage methodology set forth in the Wage Rule for approximately 3,500 previously certified H-2B applications. However, in light of our recent decision to postpone the effective date of the Wage Rule until November 30, 2011, any employer who has received a supplemental H-2B prevailing wage determination in anticipation of the September 30, 2011 effective date is not required to pay, and the Department's Wage and Hour Division will not enforce, the wage provided in that supplemental prevailing wage determination for any work performed beginning September 30, 2011 through November 29, 2011 by H-2B workers or U.S. workers recruited in connection with the H-2B application process. The employer is expected to continue to pay at least the prevailing wage as promised in the employer's labor certification (ETA Form 9142) for any work performed before November 30, 2011. However, employers who received a supplemental H-2B prevailing wage determination must pay at least that wage to any H-2B worker and any U.S. worker recruited in connection with the labor certification for work performed on or after November 30, 2011.

Signed at Washington, DC, this 27th of September 2011.

Jane Oates,

Assistant Secretary for Employment and Training.

Nancy J. Leppink,

Deputy Administrator, Wage and Hour Division.

Footnotes

1.  CATA v. Solis, Dkt. No. 119, 2011 WL 2414555.

2.  See Louisiana Forestry Association, Inc., et al. (LFA) v. Solis, et al., Civil Docket No. 11-1623 (WD LA, Alexandria Division); and Bayou Lawn & Landscape Services, et al. (Bayou) v. Solis, et al., Civil Docket No. 11-445 (ND FL, Pensacola Division).

3.  On September 19, 2011, the plaintiffs in the CATA litigation moved to intervene in the LFA litigation, and also moved to transfer venue over the litigation to the Eastern District of Pennsylvania, the court in which the CATA case remains pending.