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On April 24, the U.S. Departments of Homeland Security (DHS) and Labor (DOL) jointly published an “emergency” interim final rule, effective immediately, on how the wages for temporary non-agricultural H-2B workers should be calculated.

The rule was issued in response to a federal district court decision in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis. Under the ruling, DOL was given 30 days to cease using its 2008 wage methodology, which used a four-tier wage system based on the Bureau of Labor Statistics’ Occupational Employment Statistics (OES) survey.

Under the interim final rule, the four-tier wage system is replaced with the average OES wage. It permits employers to use wages calculated under the Davis-Bacon Act, but does not require such wage rates unless the H-2B workers are working on a federal construction project. The rule also requires union signatories to pay the wage rates stipulated in their respective collective bargaining agreements—a provision that remains unchanged from previous rules. 

This rule differs from a 2011 final rule, which is currently blocked by a continuing appropriations resolution that will not fund it, because it does not contain the “at least the highest of” provision that required employers to pay the highest wage of the various wage options–which would have set wages well above the above market value and would have expanded the use of Davis-Bacon to non-federal work. 

In a set of frequently asked questions, DOL clarified the interim final rule “applies to all requests for H-2B prevailing wage determinations and Applications for Temporary Employment Certification adjudicated or processed on or after April 24, 2013, and H-2B work being performed on or after the effective date of the Wage Methodology IFR [interim final rule].” Employers who currently are paying H-2B workers based on the four-tier rates will be responsible for complying with the interim final rule for all work performed on or after the date the employer receives a supplemental determination from DOL. 

DOL and DHS are accepting comments on the revised wage methodology until June 10. In particular, the agencies are interested in feedback on:

• Whether the OES average is the appropriate basis for determining the prevailing wage.
• The use of the Davis-Bacon Act in making prevailing wages determinations.