In a recent decision, the U.S. Court of Appeals for the Third Circuit rejected the Department of Labor's (DOL) 2009 guidance regarding the use of private employer surveys for determining prevailing wages under the H-2B program. The Court found that the usage of the private wage surveys had the effect of depressing wages which harms H-2B workers and U.S. workers. The Court also found a harm to U.S. employer that could not afford to do a private wage survey and were required to use DOL's wage data which was higher than the private survey data. The likely effect of the decision will be a push to the use of the DOL's wage data rather than private surveys.
The decision is just another step down the windy and painful road of prevailing wage complications for H-2B employers. Stay tuned as DOL plans to engage in further rulemaking on the H-2B prevailing wage front.