In a victory for merit shop construction, the U.S. Department of Labor (DOL) Dec. 19 published a final rule revising the H-2B temporary worker program that permits employers to hire foreign workers to come to the United States to perform temporary nonagricultural work.  At ABC’s urging, DOL revised a provision from the proposed rule that would have mandated employers first recruit workers through labor unions before qualifying for the H-2B program.  The new rule goes into effect Jan. 18.

ABC filed comments with DOL and U.S. Citizenship and Immigration Services opposing the provision, which called for using union organizations to recruit employees “if it is appropriate for the occupation and customary to the industry and area of intended employment.”  

“In the construction industry, not only is this preferential requirement arbitrary and grossly unreasonable, it also misstates the relevant facts,” ABC stated, noting that nonunion contractors currently make up over 80 percent of the construction industry in the United States.  Mandatory recruitment of employees through unions “may be appropriate in some industries,” ABC said, “but it would be entirely inappropriate in construction.”  

In response to ABC’s concerns, DOL altered the provision so that employers are only required to contact a labor organization “in cases where the employer is already a party to a collective bargaining agreement.”

Other changes in the final rule include a revision of the “temporary employment” definition to make it easier for employers - particularly construction contractors - to hire workers for a one-time need between one and three years.  The previous definition of temporary was capped at one year.  The rule also requires employers to use recruiters to locate H-2B workers and to report on what work the H-2B employees are performing, where the work is taking place, for whom they are working and when workers fail to show up or are terminated.  Finally, the rule reduces the period of time from six months to three months during which H-2B workers must wait outside the United States before they are eligible to return.  

To read about the H-2B program revisions, click here.

For additional information, contact Bob Hirsch at ABC, hirsch@abc.org.