1. DOL plans to violate the federal court orders prohibiting enforcement of the 2008 H-2B Final Rule.
2. How to protect yourself.
On March 4, 2015, a United States District Court prohibited the Department of Labor (“DOL”) from enforcing the 2008 H-2B Final Rule. This is the set of regulations that was in effect before May 2015. Here is the Court's March 4th Order.
As of November 2nd, DOL’s national leadership has given the green light to its Wage and Hour Division field offices to violate the Court’s Orders. Get ready for renewed investigations, fines, and distraction using the 2008 H-2B Final Rule as the excuse. Every H-2B employer with an open Wage and Hour investigation is at risk.
What should you do if DOL tries to enforce the 2008 H-2B Final Rule? Here are some tips:
Inform DOL that you will not comply with its demands under the 2008 H-2B Final Rule until you have consulted legal counsel.
Inform an H-2B specialist attorney or your filing agent. It will be critical to know against whom DOL is enforcing the 2008 H-2B Final Rule.
Ask your legal counsel (if not an H-2B specialist) to reach out to me or another H-2B specialist attorney for assistance. We can help without interfering with your ongoing relationship.
Provide your legal counsel with the critical Court orders: the March 4, 2015 injunction and the September 4, 2015 denial of DOL’s/legal services’ request for permission to enforce the 2008 H-2B Final Rule.
DOL’s decision to enforce the 2008 H-2B Final Rule means that H-2B employers will face hundreds of thousands of dollars of fines, expenses, and distraction for allegedly failing to obey a set of regulations that never had the force of law. DOL is about to run headlong into the rule of law; let’s make sure the rule of law wins.