1. The proposed changes to the H-2B Program are, overall, steps in the right direction.
2. The bill proves that "politics is the art of the possible." Some provisions are unquestionably beneficial. Some might be if DOL implements Congress' intent, rather than its own.
3. The "devil is in the details." Having persuaded Congress, it is now time to persuade DOL and DHS to follow Congress' intent.
Yesterday, "the House Appropriations Committee . . . unveiled the fiscal year 2016 Omnibus Appropriations bill, the legislation that will provide discretionary finding for the federal government" until September 30, 2016. The bill contained provisions related to the H-2B Program.
(1) Congress made it absolutely clear that the prevailing wage for entry level positions is to be measured by the market wage for the entry level positions. DOL's preferred survey - the Occupational Employment Statistics survey - does not provide that information. (See p. 24,133: "However, the OES survey captures no information about differences within the groupings based on skills, training, experience or responsibility levels of the workers whose wages are being reported.") Congress wisely required DOL to accept statistically valid surveys that capture this information.
(2) Unionized employers have a problem on their hands. If the survey wage is higher than the actual wage paid in accordance with the collective bargaining agreement, employers (at least as a matter of H-2B law) would need to pay more. This may force them into a ULP.
(3) Congress prohibited DOL from expending funds for the unnecessary and wasteful CNPC audits. These were paper exercises that simply imposed costs, but did not add much (if anything) to the Wage and Hour Division's efforts.
(4) Congress prohibited DOL from imposing "supervised recruitment." This may become a problem if DOL decides to seek debarment in the borderline cases for which supervised recruitment was designed. DOL may be able to reproduce the result through existing authorities.
(5) Congress revived the returning worker exemption. The problem is that it is for only one year. As such, it might help this season, but it is doubtful that the supposedly massive influx of H-2B workers that some fear will materialize.
(6) Although welcome, the bill is not a panacea. It makes some needed tweaks, but leaves many contentious issues unresolved.