HERNDON, Va., PLANET and the H-2B community have won an important appeal against the U.S. Department of Labor (DOL) regarding the H-2B wage rule.
Recently, a case was brought against the DOL by a plaintiff who appealed a mid-season prevailing wage determination that it received under the DOL’s H-2B interim final wage rule. PLANET was the only landscape industry association to sign on to the appeal and provide an Amicus brief.
On Dec. 3, 2013, BALCA, the Bureau of Alien Labor Certifications Appeals, ruled in PLANET's favor by unanimous decision.
In the appeal decision, BALCA ruled as follows: “The Department’s H-2B regulations do not require an employer to increase the wage it offers and pays its H-2B workers after the Department has approved and certified its Application for Temporary Employment Certification …. It was an abuse of discretion for the Certifying Officer to affirm the supplemental PWDs, which impose a legal obligation that is not otherwise required by law. We therefore REMAND the supplemental PWDs to the Certifying Officer with instructions to vacate the increase wage obligations that they purport to impose.”
The complete ruling can be found at the following link: http://www.landcarenetwork.org/legislative/IslandHoldingsDecision2013.pdf.
It still is not clear how the DOL will apply the ruling in this individual case to other mid-season wage determinations. Circumstances differ among employers, and while many employers appealed their wage determinations under the interim final rule, not all employers may have done so, and some may have already paid the supplemental wages to workers.
It is also important to note that the BALCA decision does not have any effect on the wages companies must pay H-2B workers next season. H-2B wage rates for next season will continue to be governed by the interim final rule which calls for a mean wage rate akin to the Occupation Employment Statistics (OES) Level 3 wages.
Working with their agents or attorneys, many landscape companies have applied for prevailing wage determinations for next season using private wage surveys rather than OES data. In order to be accepted by the DOL, private wage surveys must use very exacting standards.
The DOL program rule and the DOL 2011 H-2B wage rule continue to be blocked by a court order and congressional prohibition respectively.