Riding the H-2B Rollercoaster
Wednesday, January 28, 2015
Posted by: Craig Regelbrugge, Senior VP, AmericanHort
WASHINGTON, D.C. - AmericanHort and PLNA continue to fight for H-2B relief on behalf of members, but faces ongoing challenges from the Department of Labor (DOL) and labor groups.
DOL announced December 8 that it will no longer issue H-2B prevailing wage determinations based on employer-provided wage surveys. The announcement followed a court order in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis. The court invalidated the portion of the 2013 interim final wage rule that deals with wage surveys.
According to DOL, employers who wish to utilize a Service Contract Act or Davis Bacon Act wage determination or a wage based on a Collective Bargaining Agreement may request a wage redetermination.
In addition, DOL announced that employers whose prevailing wage determination was based an employer-provided wage survey, but whose H-2B Applications for Temporary Employment Certification has not yet resulted in a final determination, will be notified of their wage obligation along with their certification letters.
Further, on December 17, DOL issued a notice that, if allowed to go into effect, will invalidate the Bureau of Alien Labor Certification Appeals decision in the Island Holdings Case. Under the terms of the notice, employers could be assessed back wages from appeals of supplemental prevailing wage determinations that were issued mid-season in 2013.
The H-2B Workforce Coalition, which AmericanHort co-chairs, has hired a top-notch legal team to respond to the DOL proposal. Comments on the proposal were initially due on January 16, but thanks to numerous requests, the deadline has been extended until February 2.
The coalition has also retained an economist to document the importance of wage surveys in determining fair wages. Working with the large coalition, we also continue to seek relief from the onerous H-2B wage regulation through the Congressional appropriations process. Unfortunately, the appropriations bill that Congress passed in December and the President signed into law earlier this month did not include wage relief for H-2B employers.
On a positive note, a Federal judge in the Northern District of Florida issued a permanent injunction on December 9 that will permanently prevent DOL from implementing its hostile H-2B program rule. This rule has never gone into effect due to a preliminary injunction issued by the judge in 2012.
AmericanHort and PLNA will continue to encourage Congress to pass short term H-2B relief, as well as meaningful immigration reform legislation that includes solutions for the problems plaguing the H-2A and H-2B programs.