Federal court rules new H-2B Wage Rule, effective October 1, 2011
On June 15, 2011, the U.S. District Court for the Eastern District of Pennsylvania issued a ruling that invalidated the January 1, 2012, effective date of the Wage Rule and ordered the Department of Labor (DOL) to announce a new effective date for the rule within 45 days from June 15. The basis for the court’s ruling was twofold: (1) that the almost one-year delay in the effective date was not a “logical outgrowth” of the proposed rule, and therefore was in violation; and (2) that the DOL was wrong in considering hardship to employers when deciding to delay the effective date.
The DOL proposes that the Wage Rule take effect 60 days from the date of publication of a final rule resulting from this rulemaking. It anticipates the date of publication of the final rule to be on or about August 1, 2011; thus, the effective date of the Wage Rule would be on or about October 1, 2011. The Wage Rule will be effective for wages paid to H-2B workers and U.S. workers recruited in connection with an H-2B labor certification for all work performed on or after the new effective date. A 60-day delayed effective date also would provide the Office of Foreign Labor Certification (OFLC) within the DOL with the time it needs to implement the wage rule, as the OFLC must issue new prevailing wages for approved work performed on or after the new effective date.
In order to accomplish this, the OFLC must identify all certified H-2B applications that contain dates of work to be performed on and after the new effective date of the Wage Rule. This universe of certifications must then be issued new prevailing wage determinations in accordance with the Wage Rule’s methodology. This is a labor-intensive activity, as the OFLC will have to determine and issue the new determinations before the new effective date proposed in this rulemaking for each of these employers. OFLC has determined the universe of applications to be large, and therefore will require the 60-day delayed effective date in order to complete this task.
Last year, PLANET sent more than 3,500 postcards to all users of the H-2B program, asking them to contact their members of Congress through the PLANET Web site. We were very disappointed with the response. The simple fact is that if you do not contact your representative and senators, they will not do anything to help.
PLANET continues to work with other associations representing industries that rely on the program. However, our industry is the biggest user of the program and must therefore take the major part of the grassroots action. If PLANET members do not use PLANET’s Legislative Action Center to send letters to the Hill, this program may be rendered completely useless for the foreseeable future. We also encourage you to attend Legislative Day on the Hill and go with other members of your state to the Hill with request for help.
Director of Government Affairs
Professional Landcare Network (PLANET)