The DOL Prevailing Wage Fiasco: Two Wrongs Don’t Make a Right

It’s been a tough year for the U.S. Department of Labor’s prevailing wage program. Federal District Court Judge Louis Pollak invalidated two regulatory provisions governing the calculation of wages that employers must pay to foreign H-2B workers. DOL was instructed to promulgate new regulations by December 28, 2010. The Agency thereafter sought to delay the inevitable and requested additional time to publish the new rules. It was given until January 18, 2011.

Instead of publishing a rule with immediate effect, the Agency again put off the inevitable by publishing a rule that applies to wages for work performed close to a year later, on or after January 12, 2012. DOL reasoned that the delay was necessary to “provide employers with sufficient time to plan for their labor needs.” Judge Pollak disagreed, and since June 2011 DOL has been scrambling to reissue some 4,000 H-2B prevailing wage determinations.

Whether justified or not, DOL’s mistake here was to delay the inevitable, and the result has been quite a short-term spike in the workload for the prevailing wage team. With significant resources now needed to deal with the H-2B predicament, it logically became more difficult to issue prevailing wage determinations for PERM labor certification applications, a required step in the PERM process. The Agency’s method for dealing with this new challenge essentially replicates the very same (and very recent) mistake that it made with the H-2B matter and Judge Pollak – delay the inevitable and just put things off.

In a somewhat incomprehensible and perhaps brazen turn of events, DOL abruptly ceased issuing prevailing wage determination for any PERM (and H-1B) case. By doing this, the Agency prevents employers from starting the mandatory test of the U.S. labor market required for a PERM-based green card petition. Put another way, DOL effectively shut down the PERM program on June 15, 2011. While there have been recent reports of a few wage determinations and confirmation by DOL that it has began “limited” processing of PERM prevailing wage requests, the shutdown has lasted close to three months.

Surprisingly, DOL officials openly acknowledged their strategy. One of their earlier messages regarding the situation explained that, “[a]ll Center resources are currently being utilized to comply with [the H-2B] court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.”

Not only is the Agency guilty of inappropriate procrastination on two counts, it publically admits to shirking its duties under the Administrative Procedures Act. Theodore Roosevelt explains that, “In a moment of decision, the best thing you can do is the right thing to do. The worst thing you can do is nothing.” President Roosevelt might agree that when your decision is to do nothing, you might have some problems, particularly when you are statutorily obligated to do something. The Agency has some problems.

DOL Case Disclosure Data reports 69,169 PERM prevailing wage determinations at the end of the FY 2011 Q3. Simple math suggests that at that rate, approximately 15,000 PERM prevailing wage requests have been filed since June 15, 2011. That’s 15,000 potential mandamus actions against DOL for its admitted cessation of the PERM prevailing wage program. The Agency’s public admission to suspending the prevailing wage program might well serve as a compelling exhibit in such a suit.

Moving forward, DOL might consider omitting the terms “suspension”, “delay” and “extension” from its playbook. They have not served the Agency well in 2011.

About Erik Anderson

Erik Anderson is a Partner at Goel & Anderson, where he directs the firm's Immigrant Visa Practice, overseeing the development of case strategies to address the recruitment and transfer of human resources in the United States and overseas. In this role he manages the visa and work permit needs of international professionals, managers, and executives. He also supervises the firm staff members who handle "green card" cases for employers across the country, particularly in the Information Technology, Biotech, Insurance, Healthcare, Food and Beverage, Media, and Entertainment industries. These include labor certifications, immigrant petitions, adjustment of status, and consular processing. Erik also directs the firm's individual and family-based immigration practice areas. Prior to entering private practice, Erik was appointed Deputy Secretary of the Board of Alien Labor Certification at the U.S. Department of Labor, and today he routinely handles matters before that agency, as well as United States Citizenship and Immigration Services, the U.S. Department of State, and nearly every state workforce agency in the United States.
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