DOL Publishes Guidance and Final Rule on Wage Determinations for H-2B Wage Methodology

On November 18, 2011, the President signed into law the Consolidated and Further Continuing Appropriations Act, 2012, Public Law 112-55. The legislation contains language prohibiting the Department from implementing, administering, or enforcing, before January 1, 2012, the H-2B Wage Rule. Based on Congressional intent to continue to implement the current H-2B regulations, the Department has published a Final Rule extending the effective date of the Wage Rule to apply to work performed on and after January 1, 2012. The Final Rule is accessible here.

In light of this postponement, the Department has also published a Federal Register Notice providing that the wage determinations previously issued under the H-2B Wage Rule will not be effective until January 1, 2012, and will apply only to work performed on or after January 1, 2012. Any employer who has previously received an H-2B prevailing wage determination in anticipation of either the September 30, 2011 or November 30, 2011 effective dates is not required to pay, and the Department's Wage and Hour Division will not enforce, the wage provided in the prevailing wage determination issued under the Wage Rule for any work performed by H-2B workers or U.S. workers recruited in connection with the H-2B application process until January 1, 2012. Employers are expected to continue to pay at least the prevailing wage as provided in a prevailing wage determination issued under the 2008 H-2B Rule for any work performed up to January 1, 2012. The guidance can be accessed here.

The Department will issue H-2B prevailing wage determinations before January 1, 2012 in accordance with the methodology contained in the H-2B rule published in December 2008. Absent further legislative or judicial action, employers who receive such prevailing wages and use them to file H-2B labor certification applications will be provided additional information on their wage obligations after January 1, 2012. The prevailing wage determinations that will be provided will instruct users that any advertising conducted must include language that informs potential applicants the wage they will actually be paid may be different from the advertised wage.