On October 5, the Department of Labor (DOL) issued a proposed rule that would change the wage methodology the DOL uses to calculate H-2B prevailing wages. This proposal would significantly raise costs for employers who use the H-2B program.

According to the DOL, it issued the rule to respond to an August 30 ruling by the U.S. District Court for the Eastern District of Pennsylvania in Comité de Apoyo a los Trabajadores (CATA) v. Solis that ordered it, within 120 days, to promulgate new rules concerning the H-2B prevailing wage calculation. The DOL also says in the proposed rule that the “Department has grown increasingly concerned that the current calculation method does not adequately reflect the appropriate wage necessary to ensure that U.S. workers are not adversely affected by the employment of H-2B workers.”

In developing prevailing wage estimates, DOL currently bases prevailing wage determinations on four tier levels that link skill levels to Occupational Employment Statistics (OES) wage surveys. The proposed rule would eliminate the use of the four–tiered wage structure and instead require that the arithmetic mean of the OES wage rates be used to calculate the prevailing wage. The proposed rule would also eliminate the option for employers to use private wage surveys to determine wages. The DOL estimates that this change in methodology will increase hourly wages for landscaping services by $3.60 from what you are required to pay now.

Comments on the proposal are due to the DOL by November 4. In addition, the DOL still anticipates developing proposed rules that address other aspects of the H-2B programs.

PLANET is preparing comments on the proposed rule and is completing a more detailed analysis of the impact on the landscape industry. PLANET is also working with the H-2B Workforce Coalition to coordinate comments and to develop a strategy to fight these costly changes. The Small Business Administration Office of Advocacy is also helping because of its pending impact on small business. In addition, PLANET expects the data in the economic survey conducted by the U.S. Chamber of Commerce and Immigration Works USA to help provide the DOL with some valuable information about the industry’s need for the H-2B program.