Wolfsdorf Rosentahl LLP

ETA Extends Comment Period on H-2B Wage Methodology Rule


On October 5, 2010, the Department of Labor’s Employment and Training Administration (ETA) issued a proposed rule governing the certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment and the enforcement of related obligations of employers. The proposed rule provided a comment period through November 4, 2010. The agency extended the comment period for an additional 8 days, to November 12, 2010.

The proposed rule would revise the methodology by which the Department calculates the H-2B prevailing wage. It would establish that the prevailing wage will be the highest of: (1) wages established under an agreed-upon collective bargaining agreement (CBA); (2) a wage rate established under the Davis-Bacon Act (DBA) or McNamara-O’Hara Service Contract Act (SCA) for that occupation in the area of intended employment; and (3) the arithmetic mean wage rate established by Occupational Employment Statistics (OES) for that occupation in the area of intended employment. The employer would be required to pay its workers at least the highest of the prevailing wage as determined by the National Processing Center (NPC) (currently the National Prevailing Wage Center), the federal minimum wage, the state minimum wage, or the local minimum wage.

The proposed rule also would eliminate the use of the current four-tiered wage structure that differentiates wage tiers by level of experience, education, and supervision required to perform the job duties. The Department proposes instead a single OES wage level for H-2B job opportunities based on the arithmetic mean of the OES wage data for the job opportunities in the area of intended employment.

The Department anticipates further rulemaking that will address other aspects of the H-2B temporary worker program. Interested persons are invited to submit written comments on the proposed rule by November 12, 2010, using one of the methods set forth in the extension notice, which is available as a PDF here

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