Wolfsdorf Rosenthal LLP

DOL Elaborates on Procedures Under Comite de Apoyo Decision Re H-2B Prevailing Wages


In response to inquiries, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) recently elaborated on the procedures for implementing the decision in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis, No. 14-3557 (3d Cir.). That decision invalidated DOL regulations authorizing employers to use employer-provided wage surveys for prevailing wage determinations for H-2B temporary foreign workers. The DOL stated:

Employers with a pending H-2B prevailing wage request: Employers who have a pending prevailing wage determination request that is based on an employer-provided survey may modify that request to use a Service Contract Act (SCA) or Davis Bacon Act (DBA) wage determination or a wage based on a Collective Bargaining Agreement (CBA). That request will not be treated as a new filing and the request will be processed based on the original filing date. The OFLC reminded employers that the request must specify precisely which SCA or DBA wage determination is being used or provide a copy of the Collective Bargaining Agreement. In the absence of such a request, the National Prevailing Wage Center (NPWC) will issue the prevailing wage determination based on the Occupational Employment Statistics (OES) mean for the occupation.

Employers who have received an H-2B prevailing wage determination: Employers who have already received a prevailing wage determination based on an employer-provided survey but who have not yet filed their application with the Chicago National Processing Center (NPC) may request a redetermination from the NPWC irrespective of the time limits set forth in 20 CFR § 655.10(g). An employer who has received a prevailing wage determination based on an employer-provided survey may use the survey-based wage rate in its recruiting, the OFLC said. Employers who have filed their application with the NPC, and whose applications are adjudicated favorably, will receive a supplemental prevailing wage determination (SPWD) based on the OES mean for the occupation, along with the certification. The SPWD will provide the opportunity to seek a redetermination under 20 CFR § 655.10(g). If, upon redetermination, the use of an alternative wage source (SCA, DBA, or CBA) is approved, the employer should return the original certification to the NPC and a new certification will be issued.

See also: OFLC’s December 23, 2014, announcement

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