On September 12, 2011, the Office of Foreign labor Certification (OFLC) issued Questions and Answers regarding the delays in issuing Prevailing Wage Determinations (PWD) and H-1B Labor Condition Applications (LCA). Reminding employers that they can obtain a prevailing wage on their own without the assistance of the National Prevailing Wage Center (NPWC), OFLC observed that DOL’s regulations provide the employer with the following alternative sources for obtaining a prevailing wage in support of an H-1B application:
- A wage rate set forth in a collective bargaining agreement (CBA);
- A wage rate for the occupation and area of intended employment under either the Davis-Bacon Act (DBA) or the McNamara-O'Hara Service Contract Act (SCA), which are available at http://www.wdol.gov;
- A wage rate produced by a survey conducted by an independent authoritative source that meets the requirements set forth in Departmental regulations; or
- A wage rate produced by another legitimate source of information, including the Bureau of Labor Statistics Occupational Employment Statistics Survey (OES) data, which is available at http://www.flcdatacenter.com.
OFLC mentioned that as long as the employer provides a prevailing wage in support of its H-1B application, whether through obtaining a PWD from the NPWC or through the other sources listed above, there should not be any consequences to the foreign worker on whose behalf the H-1B application was filed.
OFLC however cautioned that if the H-1B employer selects an incorrect prevailing wage, then the employer is responsible for that wage attestation in the event of an investigation or enforcement action. The Department’s regulations state that when an employer obtains a prevailing wage determination from the NPWC, the Department of Labor will accept that wage as correct and will not question its validity, i.e. the employer is granted “safe harbor”. However, the Department cannot grant this same "safe harbor" to employers who obtain their own prevailing wages under the regulations.