Wolfsdorf Rosenthal LLP

BALCA Holds That Institutions of Higher Education Need Not Include Other Types of Entities in Wage Surveys


In Matter of University of Michigan, 2015-PWD-00006 (Nov. 18, 2015), the Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) ruled in favor of an employer, the University of Michigan, that argued its wage survey of institutions of higher education was sufficient in determining the prevailing wage for a Senior Associate Regulatory Analyst. The Center Director (CD) had required that other types of entities be included in the employer’s wage survey, but the employer noted, among other things, that it had no obligation to provide such a survey.

The BALCA observed that the regulation at 20 CFR § 656.40(e) states that in computing the prevailing wage for an employee of an institution of higher education, or an affiliated or related nonprofit entity, a nonprofit research organization, or a governmental research organization, the prevailing wage level takes into account the wage levels of employees only at such institutions and organizations in the area of intended employment. This regulation was based on § 415 of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA).

Under the regulations, the BALCA noted, an ACWIA wage for an institution of higher education may sample only other institutions of higher education. “The CD’s insistence that the Employer provide a survey that sampled each type of ACWIA entity is inconsistent with the Department’s interpretation of the regulation and therefore constitutes an abuse of discretion,” the BALCA held. The BALCA overruled the CD and remanded the case to the CD for further processing consistent with the BALCA’s order.

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