H-2B employer wins wage appeal against DOL

December 10, 2013 -  By

The H-2B community has won an appeal against the U.S. Department of Labor (DOL) regarding the H-2B wage rule, the Professional Landcare Network (PLANET) reported.

Earlier this year, Island Holdings, which operates a seasonal resort in Edgartown, Mass., brought a case against the DOL, appealing a mid-season prevailing wage determination (PWD) instructing the resort to raise H-2B workers’ wages under the DOL’s H-2B interim final wage rule. PLANET had signed on to the appeal and provided an amicus brief.

On Dec. 3, the Bureau of Alien Labor Certifications Appeals (BALCA) ruled in the plantiff’s favor by unanimous decision.

“The department’s H-2B regulations do not require an employer to increase the wage it offers and pays its H-2B workers after the department has approved and certified its application for temporary employment certification,” BALCA said in the ruling. “It was an abuse of discretion for the certifying officer to affirm the supplemental PWDs, which impose a legal obligation that is not otherwise required by law. We therefore remand the supplemental PWDs to the certifying officer with instructions to vacate the increase wage obligations that they purport to impose.”

It’s not clear how the DOL will apply the ruling in this case to other mid-season wage determinations, PLANET reported. Circumstances differ among employers, and while many employers appealed their wage determinations under the interim final rule, not all employers may have done so. Some already may have paid the supplemental wages to workers.

Additionally, PLANET said the BALCA decision does not have an effect on the wages companies must pay H-2B workers next season. H-2B wage rates for next season will continue to be governed by the interim final rule which calls for a mean wage rate akin to the Occupation Employment Statistics (OES) Level 3 wages.

The DOL program rule and the DOL 2011 H-2B wage rule continue to be blocked by a court order and congressional prohibition respectively.

Marisa Palmieri

About the Author:

Marisa Palmieri is an experienced Green Industry editor who's won numerous awards for her coverage of the landscape and golf course markets from the Turf & Ornamental Communicators Association (TOCA), the Press Club of Cleveland and the American Society of Business Publication Editors (ASBPE). In 2007, ASBPE named her a Young Leader. She graduated with a Bachelor of Science in Journalism, cum laude, from Ohio University’s Scripps School of Journalism.

2 Comments on "H-2B employer wins wage appeal against DOL"

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  1. Does your magazine talk about small Lawnservice struggle in this business?

  2. Hi Leonardo,

    We do. If you can be more specific, I’m happy to point you in the direction of some articles that could be helpful. Also, feel free to email me directly at mpalmieri@northcoastmedia.net or call me at 216-706-3764.

    Thanks for your interest,

    Marisa Palmieri
    Landscape Management