The Department of Labor’s Employment and Training Administration has proposed to amend its regulations governing certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment and related enforcement. The proposed rule, published on October 5, 2010, would revise the methodology by which the Department calculates the H-2B prevailing wage.

The proposed rule 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.

Finally, the H-2B regulations currently allow the use of an employer-provided survey to determine the prevailing wage when that survey meets certain methodological requirements, even if the survey produces a lower wage than the OES wage. The proposed rule would eliminate the use of private wage surveys in the H-2B program.

The Department anticipates further rulemaking that will address other aspects of the H-2B temporary worker program. (The proposed rule notes that temporary labor certification is currently not required for H-2B employment on Guam, for which certification from the governor of Guam is required.)

Comments are due by November 4, 2010, and should be submitted using one of the methods set forth in the proposed rule, which is available here. Also see here.