DOL is trying to sneak at least two major changes to the H-2B Program through by amending the program's forms. If adopted, the changes would make the H-2B Program almost unworkable for the landscaping industry.
The Paperwork Reduction Act requires the Office of Management and Budget to approve every government form that requires a member of the public to provide information. DOL forms for the H-2B program are subject to this OMB approval process.
Usually, the review process is non-controversial. Most of DOL's submissions related to the H-2B Program have been approved without change or comment. The reason for the simplicity of the process is that the forms cannot impose new legal obligations and must correctly reflect the law. Given this principle, it is safe to say that few people review proposed changes to government forms and fewer still comment on them.
DOL, however, has broken that trust. On September 7th, DOL proposed adopting three new H-2B-related forms and amending the current ones. This article focuses on the proposed Appendix A and the revised Appendix B.
Appendix A requires an H-2B employer with multiple worksites to list every worksite where H-2B workers will work, even if they are in a single area of intended employment. According to the proposed Form 9142 instructions, a worksite is a "physical location" where work will be performed. DOL presents this form as a service to employers by making it easier to list multiple worksites.
Appendix B are the "attestations." Some of the attestations repeat regulatory language verbatim. Some, however, purport to paraphrase the regulations. DOL explicitly states that one of the purposes for the attestations is enforcement. When the attestations differ from the regulatory text, a question arises as to which statement of the obligation controls. In a 2013 en banc decision, BALCA held that the regulatory text controls.
DOL's Appendix A Threatens To Make The H-2B Program Unusable For Landscapers
By requiring Appendix A, DOL is imposing a de facto requirement that landscapers list every physical location where H-2B work will be performed. This is an impossible burden, even if every location could be foreseen. Even a small residential landscaper will work at hundreds of sites within the same area of intended employment. Every single place with its own address would have to be listed. Even places without an address such as a highway berm would need to be listed. This is a wholly unnecessary burden because so long as the location is within the same area of intended employment, nothing about the terms and conditions of the H-2B employment changes. Moreover, nothing in the 2015 Interim Final Rule imposes such a requirement. Landscapers, who currently constitute the single largest industry group in the H-2B Program, would be driven out.
DOL's Proposed Wage Attestation Misstates The Law And Is Unworkable
Proposed Appendix B contains a long attestation, loaded with time bombs. DOL gives the game away in the first sentence:
The offered wage equals or exceeds the highest of the applicable Federal, State, or local minimum wage, or the prevailing wage determination for the occupation that is issued by the Department to the employer, as reflected on the employer’s approved Application for Temporary Employment Certification, for the time period the work is performed.
The emphasized language is taken from the H-2A regulations. It stands for the idea that if DOL changes the adverse effect wage rate mid-season, the grower will increase wages. The same would go here. There are a couple of glaring problems here. First, the H-2B regulations do not require H-2B employers to pay the prevailing wage in effect "for the time period the work is performed." DOL litigated that issue in the Northern District of Mississippi and won. Second, many industries that use the H-2B program win work through bidding. A wage increase mid-season can impose devastating and irreparable losses on a company by upending its bidding calculations. A landscaping business, for instance, cannot operate with such uncertainty. And, left unsaid, is the issue of advertisement.
If that weren't bad enough, Attestation No. 5 continues:
If, after the issuance of a prevailing wage determination, the Department issues a new or revised prevailing wage determination that is assigned to the employer’s application or certified period of employment, the employer must offer a wage that equals or exceeds the highest of the new prevailing wage or the applicable Federal, State, or local minimum wage, unless notified otherwise by the Department.
This sentence allows DOL to ensure that employers always pay the highest wages possible. Let's say that an employer notices that the prevailing wage has gone down and files a prevailing wage request. A prevailing wage determination is then issued with the lower wage reflecting the prevailing wage "for the time period the work is performed." DOL can cancel that new, valid PWD by notice. This procedure is not provided for in the regulations. What this reveals is DOL's replacement of the original rationale of the H-2B program - ensuring market neutrality - with a new rationale - maximizing income transfers to foreign workers and subsequent transfer payments.
What Next: Submit Comments By November 6, 2018
DOL has not yet adopted the proposed forms. Interested people, especially landscapers, need to be made aware of the threat and need to (1) share information and (2) submit comments. Comments will smoke DOL out and may lead to necessary changes. At a minimum, they will let DOL know that its subterfuge did not succeed.