On April 13, 2009, a three-judge panel of the Board of Alien Labor Certification Appeals (BALCA) issued a decision finding that a combined analysis of education and experience led to the issuance of an erroneous prevailing wage determination for a labor certification application.
In its initial request, the employer had requested a prevailing wage determination for a position within the Industrial Engineer classification (O*Net code 17-2112) at level 2, with minimum requirements for the position being a Master's degree and at least 12 months of experience. The SWA issued a determination for Industrial Engineer, Level 4, arguing that the Master's degree and one year of experience "amounted to a five-year experiential requirement," which exceeded the minimum requirements listed by O*Net.
The employer contested this determination on the grounds that pursuant to the "Prevailing Wage Determination Policy Guidance" letter ("Guidance Letter", May 9, 2005), education and experience requirements are to be computed separately when determining the prevailing wage level. The SWA nevertheless issued correspondence affirming its determination.
Thereafter, the SWA's determination was reviewed and affirmed by the Department of Labor Employment and Training Administration.
On review, BALCA found that educational and experiential requirements are not to be commingled when computing wage level analyses and the SWA's computation was in clear violation of the Guidance Letter's intent to consider education and experience separately. It therefore ordered that the prevailing wage be modified to classify the position at wage level 2, rather than wage level 4.
For the Prevailing Wage Determination Policy Guidance letter and a checklist to determine appropriate wage levels, please visit the Foreign Labor Certification Data Center
