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Amidst Cacophony of Guest Worker Deal Chatter, Farm Workers Score Big H-2B Wage Victory in the Courts

U.S. District Judge Legrome Davis granted farm worker groups a permanent injunction after finding that the Labor Department’s 2008 Wage Rule “directly contradicts” the Immigration and Nationality Act.

That act, from 1952, created the H-2B visa program which allows employers to bring in temporary guest workers from other countries. Before doing so employers must receive a temporary labor certification from the Secretary of Labor which confirms that there are not enough qualified workers who will do the job at the prevailing wage. Currently run by the Department of Homeland Security and the Department of Labor, the system has been widely abused.

The prevailing wage rule has changed over time. Current figures are based on the 2008 wage rule which farm worker groups have been fighting since 2009. In his ruling, Judge Davis found that structural flaws in the 2008 rule artificially lowered wages below market standard. The situation, as described by Courthouse News Service:

Over the past three decades, the DOL has periodically changed its method for calculating prevailing wages, without notice and comment, and often without explanation. Most recently, it adopted the 2008 Wage Rule, which defines the prevailing wage as “the arithmetic mean … of the wages of workers similarly employed at the skill level in the area of intended employment.”

In 2009, three farmworker organizations - the Comité de Apoyo a los Trabajadores Agrícolas, Pineros y Campesinos Unidos del Noroeste, and the Alliance of Forest Workers and Harvesters - partnered with Salvador Martinez Barrera, a leader of Centro de los Derechos del Migrante’s defense committee, to challenge the Wage Rule and other provisions as improperly promulgated under the Administrative Procedure Act (APA).

U.S. District Judge Louis Pollak held the following year that the “DOL has never explained its reasoning for using skill levels as part of H-2B prevailing wage determinations,” and that the system has never been subject to APA-required notice-and-comment periods.

Instead of vacating the rule, however, Pollak directed the DOL to promulgate a replacement within 120 days.

In January 2011, the DOL set a revised prevailing wage regulation - the 2011 Wage Rule - to take effect on Jan. 1, 2012. Upon Pollak’s orders, the department hastened that date to Sept. 30, 2011.

Davis’ decision invalidates the 2008 rule (which the DOL never stopped using). New standards must now be drawn up in order to properly pay these H-2B guest workers. The court ruling gives the DOL 30 days to comply with the injunction. Workers’ rights advocates hope that after this period true wage protections will be put into place that do not have a depressing effect. Davis notes that his decision, though untimely, is needed to protect the U.S. workforce:

“Although vacating the 2008 Rule might disrupt the H-2B program’s current structure, Congress has not granted the DHS and DOL unfettered authority to issue H-2B visas,” Davis wrote. “Rather, in passing the INA, Congress defined a small subset of individuals who may receive H-2B visas if, and only if, the DHS can ensure that such visas will not adversely affect United States workers. Absent this assurance, the DHS is not authorized to issue H-2B visas.”


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