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The Department of Labor (DOL) issued clarifying guidance for those H-2B employers with pending prevailing wage requests and recently received wage determinations in response to confusion about the process after a court
nullified rules that allowed employers to use privately funded surveys to determine prevailing wages.
On Dec. 8, 2014, the DOL ceased issuing prevailing wage determinations based on employer-provided wage surveys. The U.S. Court of Appeals for the Third Circuit ruled Dec. 5, 2014, that federal regulations authorizing employers to use employer-provided wage surveys for prevailing wage determinations for H-2B workers was “arbitrary and capricious.”
Going forward, employers will have to use the DOL’s default Occupational Employment Statistics (OES) prevailing rate.
Employers with pending prevailing wage requests based on an employer-provided survey may modify that request to utilize a Service Contract Act (SCA) or Davis-Bacon Act (DBA) wage determination or a wage based on a collective bargaining agreement. Such a request will not be treated as a new filing and will be processed based on the original filing date. The DOL 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 will issue the prevailing wage determination based on the OES mean for the occupation.
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 may request a redetermination from the National Prevailing Wage Center.
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 DOL said.
Employers who have filed their application with the national processing center, and whose applications are adjudicated favorably, will receive a supplemental prevailing wage determination based on the OES mean for the occupation, along with the labor certification. The determination will provide the opportunity to seek a redetermination. If, upon redetermination, the use of an alternative wage source is approved, the employer should return the original certification for a new certification.
Roy Maurer is an online editor/manager for SHRM.Follow him
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