On April 24, 2013 the Department of Labor (DOL) and the Department of Homeland Security (DHS) published a joint Interim Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2 in the Federal Register. The new Interim Final Rule revises the prevailing wage methodology used by DOL to calculate certain prevailing wages paid to H-2B workers and U.S. workers recruited in connection with an H-2B Application for Temporary Employment Certification.
The Interim Final Rule has been published in response to a court order issued by the U.S. District Court for the Eastern District of Pennsylvania on March 21, 2013, that vacated a portion of the 2008 wage methodology rule. The court held that a provision of the 2008 wage rule, which used the four-level OES wage rates, was invalid and vacated that provision of that rule and issued a permanent injunction prohibiting DOL from using four levels when issuing a prevailing wage determination based on the OES survey.
The New Wage Methodology Interim Final Rule
The Interim Final Rule eliminates the use of four-tier wage rates based on the Bureau of Labor Statistics’ Occupational Employment Statistics (OES) survey and replaces it with a determination based on the OES arithmetic mean. The Interim Final Rule does not affect prevailing wage determinations based on applicable Collective Bargaining Agreement wage rates, the Service Contract Act or Davis-Bacon Act wage determinations, or appropriate private wage surveys.
The Interim Final Rule applies to all requests for prevailing wage determinations and applications for temporary employment certification adjudicated or processed on or after April 24, 2013 and H-2B work being performed on or after that date.
Effect on Employers who currently employ H-2B Workers
The new Wage Methodology Interim Final Rule also applies to employers who have already received a temporary employment certification and currently employ H-2B workers.
Employers who have H-2B workers performing work on or after April 24, 2013 will receive a new prevailing wage determination in accordance with the Wage Methodology Interim Final Rule. These employers are required to offer and pay this new wage for any work performed on and after the date the employer receives the supplemental determination from DOL. H2B Employers will be responsible for providing wages that comply with the new Wage Methodology Interim Final Rule for all work performed on and after the date an employer receives a supplemental determination from DOL.
DOL has also announced that on April 24, 2013, the effective date of the Interim Final Rule, it has resumed processing both pending H-2B prevailing wage requests and H-2B applications for temporary labor certification based on the OES wage survey data, in accordance with standards set in the Interim Final Rule.