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DOL Issues Proposed Rulemaking Revising Wage Calculations For H-2B Workers
According to a DOL press release just issued:
A proposed rule that seeks to improve the H-2B temporary nonagricultural worker program and better protect American workers has just been promulgated. “The proposed rule, to be published in the Federal Register tomorrow, addresses the calculations used to set wage rates for H-2B workers.
The H-2B program allows the entry of foreign workers into the U.S. when qualified American workers are not available and when the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed American workers. The H-2B program is limited by law to a program cap of 66,000 visas per year…
The previous administration promulgated H-2B regulations and did not seek comment in the rulemaking process on the data used to set wage rates. Since the 2008 final rule took effect, however, the department has grown increasingly concerned that the current calculation method does not adequately reflect the appropriate wages necessary to ensure American workers are not adversely affected by the employment of H-2B workers. On Aug. 30, the U.S. District Court for the Eastern District of Pennsylvania ruled that the regulations issued by the department in 2008 had violated the Administrative Procedure Act. The court ordered the department to promulgate new rules that are in compliance with the APA concerning the calculation of the prevailing wage rate in the H-2B program no later than 120 days from the date of the order. Today’s announcement begins the process of complying with the order and with achieving the department’s goal of fully protecting the job opportunities and wages of American workers. The department anticipates a future rulemaking that will address other aspects of the H-2B program.
The proposed regulation 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.
Under the proposed rule, the prevailing wage would be based on the highest of the following:
- Wages established under an agreed-upon collective bargaining agreement.
- A wage rate established under the Davis-Bacon Act or the Service Contract Act for that occupation in the area of intended employment.
- The arithmetic mean wage rate established by the Occupational Employment Statistics wage survey for
that occupation in the area of intended employment.
The proposed rule eliminates the use of private wage surveys, as well as the current four-tier wage structure that differentiates wage rates by the theoretical level of experience, education and supervision required to perform the job, a system that is not relevant to the unskilled positions generally involved in the H-2B program.
Interested persons are invited to submit comments on this proposed rule via the federal e-rulemaking portal at http://www.regulations.gov.”
NYC Contractor Charged With Wage Theft And Falsifying Business Records
The New York Times is reporting that a NYC contractor, who has done millions of dollars worth of work for various New York City public organizations and authorities over the past 20 years, was recently indicted and charged for allegedly widespread wage-theft on its jobs.
“The indictment… accuses M. A. Angeliades of failing to pay prevailing wages and benefits to employees who were working on rehabilitating 11 subway stations from January 2005 through December 2007, officials said.
Although the charges were limited to the company’s work on the 11 stations, covered by four contracts with the Metropolitan Transportation Authority, the Manhattan district attorney, Robert M. Morgenthau, who announced the indictments, suggested widespread crime. “I think it’s clear they stole a lot more,” Mr. Morgenthau said at a news conference to announce the charges….
the thrust of the charges is that Mr. Angeliades and the others went to great lengths to avoid paying union wages and benefits for overtime and weekend work to the company’s employees, instead paying them $20 an hour, and keeping the additional $40 to $55 an hour that the company was required to pay into union benefit funds, prosecutors said.
By failing to pay prevailing wages and benefits, as the law requires on public contracts, companies reap significant savings that allow them to underbid their competition and make substantially larger profits.
Over the past decade, the company has done $432 million worth of work for the M.T.A., $236 million for the School Construction Authority and tens of millions of dollars’ worth of work for the city and other public agencies.
After the company came under scrutiny, the city and several other agencies warned their contracting officers away from M. A. Angeliades, but it is still doing millions of dollars’ worth of work for the transportation authority, the School Construction Authority and the city’s Health and Hospitals Corporation.”
To read the entire article go to the New York Times Website.