On October 4, 2010, the Employment and Training Administration, U.S. Department of Labor ("DOL"), issued a proposed rule that would require employers to pay H-2B and American workers recruited in connection with an H-2B job application a "wage that meets or exceeds the highest of: the prevailing wage, the federal minimum wage, the state minimum wage or the local minimum wage." The proposed rule was published on October 5, 2010, in the Federal Register. Interested parties have 30 days to comment.

The H-2B program allows for the admission of 66,000 skilled or unskilled temporary guest workers annually when qualified American workers are not available and the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed Americans. The proposed rule was promulgated in response to the federal district court decision in Comite de Apoyo a los Trabajadores Agricolas v. Solis, Civil Action No. 09-240 (E.D. Pa. Aug. 31, 2010), which held that the 2008 H-2B wage regulations issued by the DOL violated the Administrative Procedure Act.

In its preamble to this proposed regulation, the DOL indicated that it has grown increasingly concerned that the current method for calculating permissible H-2B wages does not adequately reflect the wages necessary to ensure that American workers are not adversely affected by the employment of H-2B workers. Under the DOL's proposed rule, the prevailing wage for H-2B workers would be based on the highest of three measures:

  1. Wages established under a collective bargaining agreement;
  2. A wage rate established under the Davis-Bacon Act or the Service Contract Act for the occupation in the area of intended employment; or
  3. The mean wage rate established by the Occupational Employment Statistics wage survey for that occupation in the area of intended employment.

The DOL added that the inclusion of Davis-Bacon Act or Service Contract Act wages would protect U.S. worker wages by ensuring the prevailing wage determinations reflect the "highest wage from the most accurate and diverse pool of government wage data available with respect to a job classification and the area of intended employment." Additionally, the DOL indicated that the proposed rule would eliminate the current four-tier wage structure and the use of private wage surveys, which the DOL feels often are "not relevant to the unskilled positions generally involved in the H-2B program."