Labor Department Proposes New Wage Methodology for H-2B Seasonal Worker Program

On October 5, the U.S. Department of Labor (DOL) issued a proposed rule that would change the wage methodology that DOL uses to calculate prevailing wages for the H-2B program. The landscape industry is the single largest user of the program, which provides up to 66,000 visas each year for temporary and seasonal non-agricultural workers.

According to DOL, it issued the proposed rule to respond to an August 30 ruling by the U.S. District Court for the Eastern District of Pennsylvania in Comité de Apoyo a los Trabajadores (CATA) v. Solis that ordered DOL, within 120 days, to promulgate new rules concerning the H-2B prevailing wage calculation. DOL also says in the proposed rule that the “Department has grown increasingly concerned that the current calculation method does not adequately reflect the appropriate wage necessary to ensure that U.S. workers are not adversely affected by the employment of H-2B workers.”

DOL currently bases prevailing wage determinations on four tier levels that link skill levels to Occupational Employment Statistics (OES) wage surveys. The proposed rule would eliminate the use of the four-tiered wage structure and instead require that the arithmetic mean of the OES wage rates be used to calculate the prevailing wage. The proposed rule would also eliminate the option for employers to use private wage surveys to determine wages. DOL estimates that this change in methodology will increase hourly wages for landscaping services by $3.60.

Comments on the proposal are due to DOL by November 4. ANLA is analyzing the proposal and will file official comments on behalf of member H-2B program users. In addition, DOL is expected to publish other proposed changes to the H-2B program in the months ahead.