Withdrawal of Notice of Intent To Issue a Declaratory Order, 14706-14711 [2020-05205]
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Federal Register / Vol. 85, No. 50 / Friday, March 13, 2020 / Notices
February 28, 2020. In addition, the
memorandum asks agencies to publish
in the Federal Register an
announcement of the existence of that
guidance portal.
Accordingly, this notice announces
that the Department of Justice has
established its guidance portal at:
https://www.justice.gov/guidance.
Guidance documents are not binding
and lack the force and effect of law,
unless expressly authorized by statute
or expressly incorporated into a
contract, grant, or cooperative
agreement. Consistent with Executive
Order 13891 and the Office of
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memoranda, the Department will not
cite, use, or rely on any guidance
document that is not accessible through
this guidance portal, or similar guidance
portals for other Executive Branch
departments and agencies, except to
establish historical facts. To the extent
any guidance document sets out
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noncompliance will not result in
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documents may be rescinded or
modified in the Department’s complete
discretion, consistent with applicable
laws.
Dated: March 10, 2020.
Beth A. Williams,
Assistant Attorney General, Office of Legal
Policy.
[FR Doc. 2020–05204 Filed 3–12–20; 8:45 am]
BILLING CODE 4410–BB–P
DEPARTMENT OF LABOR
Withdrawal of Notice of Intent To Issue
a Declaratory Order
Office of the Secretary.
Notice of withdrawal.
AGENCY:
ACTION:
For legal, programmatic, and
prudential reasons, the Department of
Labor, through the Office of the
Secretary of Labor, is withdrawing its
December 17, 2014 Notice of Intent to
Issue a Declaratory Order.
DATES: This Withdrawal Notice is
effective March 9, 2020.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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I. Introduction
The Department of Labor (the
Department or DOL), through the Office
of the Secretary of Labor and pursuant
to 5 U.S.C. 554(e), is withdrawing its
December 17, 2014 Notice of Intent to
Issue a Declaratory Order, 79 FR 75,179
(Dec. 17, 2014) (Notice of Intent). The
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Notice of Intent proposed to overrule
the Board of Alien Labor Certification
Appeals’ (BALCA) decision in Island
Holdings, 2013–PWD–00002 (BALCA
Dec. 3, 2013) (en banc), through an
adjudicatory proceeding that would
result in a declaratory order issued
under 5 U.S.C. 554(e). Island Holdings
is among the roughly 1,050
administrative appeals that have been
pending before DOL’s National
Prevailing Wage Center (NPWC) since
2013, and that challenge DOL’s issuance
of supplemental prevailing wage
determinations (SPWDs) to certain H–
2B employers (the 2013 SPWDs).
Although the Notice of Intent was
published over five years ago, and
concerned the wages of temporary
workers from more than a year before
that, the Department never issued the
proposed declaratory order. The Notice
of Intent has left interested parties
under a cloud of uncertainty, and the
passage of time has reduced the
feasibility of compliance with and
enforcement of the 2013 SPWDs. The
Department is now withdrawing the
Notice of Intent to provide certainty and
finality, and to implement the
resolution that best accords with the
regulatory framework and relevant
policy and programmatic
considerations.
The Department’s decision follows
careful consideration of the applicable
law and the impact of the various
options on both U.S. and H–2B workers,
employers, and administration of the H–
2B labor certification program itself. The
Department concludes that (1) issuance
of the proposed Section 554(e)
declaratory order would not be
appropriate under the circumstances
and the relevant regulations; (2) on the
merits, Island Holdings is well-reasoned
and reflects the better view of the law;
and (3) prudential and programmatic
considerations weigh in favor of
withdrawing the Notice of Intent and
accepting the en banc Island Holdings
ruling.
II. Regulatory And Procedural
Background 1
A. Regulatory Background 2
A prospective H–2B employer must
obtain a temporary labor certification
1 The relevant background has been summarized
on multiple occasions. See, e.g., Notice of Intent, 79
FR at 75,180–83; Island Holdings at 2–7; Comite´ de
Apoyo a los Trabajadores Agrı´colas (CATA) v.
Perez, 46 F. Supp. 3d 550, 556–59 (E.D. Pa. 2014)
(CATA III); CATA v. Solis, 933 F. Supp. 2d 700,
703–09 (E.D. Pa. 2013) (CATA II); La. Forestry
Ass’n, Inc. v. Sec’y of Labor, 889 F. Supp. 2d 711,
715–19 (E.D. Pa. 2012).
2 This section summarizes and cites the statutory
and regulatory provisions as they existed at the time
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(TLC) from the Employment and
Training Administration’s (ETA) Office
of Foreign Labor Certification (OFLC). 8
CFR 214.2(h)(6)(iii)(A). Through the
TLC, DOL advises the Department of
Homeland Security (DHS) that U.S.
workers capable of performing the
temporary services or labor sought by
the employer are not available and that
H–2B workers’ employment will not
adversely affect the wages and working
conditions of similarly employed U.S.
workers. Id.; see also 8 U.S.C.
1182(a)(5)(A)(i)(I)–(II). To that end, a
TLC may issue only if U.S. workers are
not available to fill the given position at
what OFLC determines to be the
‘‘prevailing wage.’’ See 20 CFR 655.10
(2012).3
Prevailing wages are designed to
ensure that jobs are advertised and
offered to U.S. workers at a wage
reflective of the local economy and to
prevent employers from undercutting
U.S. workers’ wages. A would-be H–2B
employer initiates the process by
requesting and obtaining a prevailing
wage determination (PWD) from OFLC.
Id. § 655.10(a).4 The employer must
then recruit U.S. workers for the job
opportunity by advertising and offering
the position at that prevailing wage or
higher. Id. §§ 655.10(a)(3), 655.15. The
wage used in this recruitment is known
as the ‘‘offered wage.’’
If, after these domestic recruitment
efforts, an employer still has unmet
labor needs, it applies for a TLC. Id.
§§ 655.15(a), 655.20(a). The employer
agrees to abide by certain conditions,
including to pay workers the offered
wage, which cannot be lower than the
PWD rate, ‘‘during the entire period of
the approved H–2B labor certification.’’
Id. § 655.22(e); see also id. § 655.10(d)
(the PWD applies ‘‘for the duration of’’
a given certified H–2B employment).
The employer also attests that it will not
offer H–2B workers more favorable
wages than those it offered to U.S.
workers. Id. § 655.22(a). After obtaining
a TLC, an employer petitions DHS to
relevant to the SPWD administrative appeals. This
is not intended to serve as a summary of the current
law or its interpretation.
3 Citations to Title 20 of the 2012 edition of the
Code of Federal Regulations are to those provisions
in effect when that edition was published, and such
citations reference provisions promulgated in 2008,
see 73 FR 78,020 (Dec. 19, 2008). The 2012 edition
separately included, for convenience, provisions
associated with a rulemaking that had not yet gone
into effect and, as discussed infra, never did.
4 OFLC sets a validity period for each PWD,
which is at minimum three months and at
maximum twelve months. Id. § 655.10(d). The
validity period dictates when an employer may
begin the recruitment process or file its TLC
application, id. § 655.10(a)(2), but does not govern
the time period in which the employer is required
to offer and pay the prevailing wage.
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Federal Register / Vol. 85, No. 50 / Friday, March 13, 2020 / Notices
employ H–2B workers for the duration
and conditions specified in the TLC. 8
CFR 214.2(h)(6)(iii)(A). DOL’s Wage and
Hour Division (WHD), as necessary,
investigates and brings enforcement
actions for violations of the employer’s
obligations.
An employer who disputes a PWD
may seek review by NPWC. 20 CFR
655.10(g) (2012). If still dissatisfied, the
employer may seek review by the NPWC
Center Director. Id.; see also id.
§ 655.11(a)–(d). As a final avenue of
administrative review, the employer
may appeal the Center Director’s
decision to BALCA, and the resulting
decision represents ‘‘the final
administrative decision of the
Secretary.’’ 5 Id. § 655.11(e); 29 CFR
18.58 (2012).6 If an employer declines to
pursue review at any of these stages, it
is deemed to have acquiesced to the
PWD or to the most recent
administrative decision.
B. Procedural Background
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1. CATA I And The 2011 Rule
In 2008, DOL set forth a methodology
via rulemaking for calculating
prevailing wages in the H–2B program
(the 2008 Methodology) that became the
subject of a multi-year litigation. In a
2010 court decision in that case, the
2008 Methodology was invalidated on
procedural grounds. CATA v. Solis, Civ.
No. 09–240, 2010 WL 3431761, at *19
(E.D. Pa. Aug. 30, 2010) (CATA I). Citing
the disruption that would result if DOL
could not use the methodology, the
court allowed it 120 days to
‘‘promulgate new, valid regulations for
determining the prevailing wage rate.’’
Id. DOL lawfully continued to use the
invalidated 2008 Methodology as it
worked to issue a new rule.
Plaintiffs next sought to prohibit DOL
from issuing any TLC unless the
employer agreed to comply with an
SPWD resulting from any changes in the
methodology in the forthcoming rule.
CATA v. Solis, Civ. No. 09–240, 2010
WL 4823236, at *1 (E.D. Pa. Nov. 24,
2010). The Department responded that
such relief would force it to violate its
own regulations, under which the PWD
was in effect ‘‘for the duration of
employment.’’ Id. at *1–2 (quoting 20
CFR 655.10(d)). The court held that it
lacked the authority to grant plaintiffs’
request. It explained that ‘‘[u]nder
5 The BALCA consists of administrative law
judges (ALJs) within DOL assigned to review certain
decisions pertaining to DOL’s foreign labor
certification programs. See, e.g., 52 FR 11,217,
11,218 (Apr. 8, 1987).
6 This provision has since been slightly modified
to provide that BALCA’s decision in this context
constitutes the ‘‘Secretary’s final administrative
decision.’’ 29 CFR 18.95 (2019).
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low wage rates that harmed U.S.
workers. Id. The court vacated the 2008
Methodology and allowed the
Department thirty days to ‘‘come into
compliance.’’ Id. at 716.
After CATA II, OFLC immediately
ceased issuing PWDs in the H–2B
program based on the 2008
Methodology. 78 FR 19,098, 19,099
(Mar. 29, 2013). On April 24, 2013, DHS
and DOL issued an interim final rule
(IFR) revising the methodology. 78 FR
24,047 (Apr. 24, 2013). The IFR’s
methodology generally resulted in
higher prevailing wages than under the
2008 Methodology, id. at 24,058
(estimating as much as a $2.12 increase
in the weighted average hourly rate),
and was effective immediately, id. at
24,055. OFLC resumed processing
pending H–2B requests for PWDs using
the new methodology.
The IFR’s preamble also suggested
something more: it stated that H–2B
employers who had already received
PWDs would be issued SPWDs,
calculated under the new
methodology—including employers
who had already received TLCs and
were currently employing H–2B
workers. Id. at 24,055–56. The preamble
explained that the employers’ obligation
to pay wages consistent with these
SPWDs derived from CATA II and the
Form 9142 attestation to offer and pay
the most recent prevailing wage issued
by DOL. Id. at 24,055. The IFR itself,
however, modified only the regulatory
text setting forth the prevailing wage
methodology. It did not alter the text
under which PWDs and offered wages
2. CATA II, The Interim Final Rule, And apply throughout the certified
employment.
The 2013 SPWDs
On April 25, 2013, DOL clarified in a
Since the 2011 Rule never went into
‘‘frequently
asked questions’’ document
effect, DOL continued to use the 2008
Methodology. The CATA plaintiffs again that employers would be ‘‘required to
offer and pay’’ at a minimum the SPWD
sought invalidation of the methodology
wage rate ‘‘for any work performed on
and a permanent injunction barring its
and after the date the employer receives
use. CATA II, 933 F. Supp. 2d at 709.
the supplemental determination’’
On March 21, 2013, the court held that
(SPWD Notice).7 Thus, the SPWD rates
not only did the procedures by which
would
apply to the remaining work
the 2008 Methodology was adopted
performed
in conjunction with the
violate the APA, as ruled in CATA I, but
employers’ TLCs for the 2013 season.
also that the substance of the
Methodology conflicted with the APA’s Notably, the SPWD Notices did not
require employers to reopen or conduct
requirement of reasoned decisionadditional recruitment of U.S. workers
making. Id. at 710–13. Specifically, the
at the SPWD rate.
court said that the 2008 Methodology
DOL completed issuance of SPWD
resulted in TLCs that did not comply
Notices on August 12, 2013.8 See 79 FR
with the statutory and regulatory
mandate that DOL ensure H–2B
7 Frequently Asked Questions, Interim Final Rule,
workers’ employment will not adversely Wage Methodology for the Temporary Nonaffect similarly employed U.S. workers’
Agricultural Employment H–2B Program, Part 2, at
2 (ETA, OFLC Apr. 25, 2013), https://
wages. Id. at 711–13. In reaching this
www.foreignlaborcert.doleta.gov/pdf/faq_final_
conclusion, the court relied on DOL’s
rule_april_2013.pdf.
statement in the preamble to the 2011
8 This included issuance of SPWDs to employers,
Rule (a rule that never took effect) that
who (i) had already received a TLC and were
Continued
the 2008 Methodology set artificially
plaintiffs’ proposed relief, every H–2B
employer who received a conditional
labor certification would have to obtain
[an SPWD] after DOL issued revised
wage regulations’’ and that the court’s
equitable authority did not extend to
requiring DOL to undergo such
‘‘extensive administration and
management.’’ Id. at *3. Nevertheless,
the court stated in dicta that DOL’s
interpretation of the regulations was
erroneous and that nothing precluded
DOL from issuing such conditional
labor certifications as an ‘‘interim
measure[ ].’’ Id. at *1–2.
On January 19, 2011, DOL
promulgated a rule containing a new
prevailing wage methodology (the 2011
Rule). 76 FR 3,452 (Jan. 19, 2011). In
conjunction with this new rule and in
anticipation of it going into effect, DOL
conditioned TLCs on an employer’s
agreement to later receive and comply
with an SPWD calculated under the
2011 Rule’s methodology. 76 FR 21,036
(Apr. 14, 2011). To implement this
change, DOL amended ETA’s Form 9142
to contain an attestation in which the
employer agreed to pay at least the
prevailing wage rate that ‘‘is or will be
issued by’’ DOL. Id.; Form 9142,
Appendix B.1 § B(5).
The 2011 Rule never went into effect
due to litigation and to congressional
appropriations riders blocking the use of
funds for its implementation,
administration, or enforcement. See 78
FR 24,047, 24,052 (Apr. 24, 2013).
Despite its connection to the blocked
2011 Rule, the 2011 attestation
remained on the Form 9142.
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at 75,181. In each Notice, DOL informed
the employer that it could seek
redetermination of the SPWD.
Employers filed more than 1,400
requests for NPWC redetermination. See
Protective Order Mot. at 5. Because an
SPWD is not a final agency action until
the employer has exhausted all
administrative review and appeal
processes, an appealing employer does
not have an obligation to comply with
the SPWD unless or until the SPWD is
affirmed at the conclusion of this review
and appeal.
3. The Island Holdings Administrative
Appeal and CATA III
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Before CATA II and publication of the
IFR, OFLC had granted Island Holdings,
LLC (Island Holdings) three TLCs for the
2013 season. Island Holdings at 6. The
TLCs were premised on PWDs
calculated under the 2008 Methodology
and certified employment dates going
into November 2013. Id.; 79 FR at
75,181. On May 6, 2013, Island
Holdings received SPWD Notices for
each of its TLCs setting forth prevailing
wages higher than those in its PWDs.
Island Holdings at 6–7. On May 23,
2013, Island Holdings filed an
administrative appeal to BALCA
arguing, inter alia, that DOL lacked
authority to issue SPWDs in the manner
contemplated in the IFR’s preamble. See
79 FR at 75,181.
At this time, the number of requests
for NPWC and Center Director review of
the 2013 SPWDs was rapidly rising and
had resulted in an extraordinarily high
case volume. It was apparent that a
global resolution of the legal issues
presented by these administrative
appeals would be instrumental to the
appeals’ fair and expeditious resolution.
Thus, on June 6, 2013, DOL requested
that BALCA hear Island Holdings’ three
combined appeals en banc, explaining
that the argument that DOL lacked
authority to issue the 2013 SPWDs
presented ‘‘a matter of exceptional
importance which could impact a
significant number of additional cases
. . . .’’ Certifying Officer’s Request for
En Banc Consideration, at 1–2, Island
Holdings, 2013–PED–00002. BALCA’s
currently employing H–2B workers; (ii) had
received a TLC and had an H–2B petition pending
at DHS; and (iii) had completed recruitment of U.S.
workers and had a TLC application pending at
OFLC. See Defs.’ Mem. ISO Mot. for a Protective
Order at 5, CATA v. Perez, Civ. No. 09–240 (E.D.
Pa.), ECF No. 189–1 (Protective Order Mot.)
(detailing the categories). Because of the manner in
which H–2B case files are maintained by DOL, it
would be exceptionally difficult and timeconsuming—and potentially impossible—to
determine, seven years after the fact, which
employers fell into each of these three groups and
the scope of worker positions impacted.
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en banc review was expected and
intended to (i) address the question of
DOL’s authority to issue the SPWDs and
(ii) serve as a bellwether decision that
would impact DOL’s adjudication of the
other SPWD administrative appeals
presenting this question. After a brief
remand to the NPWC, which relied on
the IFR’s preamble to affirm the SPWDs,
the case became ripe for BALCA’s
consideration. 79 FR at 75,181.
On December 3, 2013, the en banc
BALCA unanimously ruled to vacate
Island Holdings’ SPWDs. Island
Holdings at 15. BALCA held that DOL
lacked the authority to issue SPWDs
where it had already approved and
issued a TLC based on the 2008
Methodology. BALCA concluded that
nothing in DOL’s regulations
contemplated the issuance of the 2013
SPWDs, id. at 11–12, and it rejected
DOL’s argument that CATA II required
DOL to issue them, id. at 14. Moreover,
BALCA held that the relevant attestation
on the Form 9142 could not serve as the
authority to issue the 2013 SPWDs,
since it lacked a foundation in the
regulatory text. Id. at 12–14. Pursuant to
DOL’s regulations, this decision
constituted ‘‘the final administrative
decision of the Secretary.’’ 29 CFR 18.58
(2012).9
On December 20, 2013, after the
CATA plaintiffs filed a new lawsuit,
OFLC stayed further action on all
pending SPWD administrative appeals.
See CATA III, 46 F. Supp. 3d at 557.
Plaintiffs asked the district court to set
Island Holdings aside, arguing that
BALCA, which is composed of ALJs,
exceeded its authority by overruling the
Secretary on issues of law and policy.
Id. at 555. In tension with its prior
representation when requesting en banc
BALCA review, DOL stated that Island
Holdings merely ‘‘represents a
resolution of that individual case’’;
‘‘BALCA’s decision does not represent
the legal position of the Secretary of
Labor,’’ DOL said. Id. (citation omitted).
On July 23, 2014, the court dismissed
plaintiffs’ complaint on standing and
ripeness grounds. Id. at 560–64. Despite
this holding, OFLC continued to stay
the SPWD administrative appeals.
4. Notice of Intent To Issue a
Declaratory Order
Nearly a year after OFLC stayed the
SPWD administrative appeals, on
December 17, 2014, the Office of the
Secretary published the Notice of Intent
proposing to overrule Island Holdings
9 Despite BALCA’s remand to the NPWC with
instructions to vacate the SPWDs issued to Island
Holdings, NPWC has yet to do so. See CATA III, 46
F. Supp. 3d at 562.
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through a declaratory order issued
under 5 U.S.C. 554(e), which would
‘‘reaffirm the Secretary’s interpretation
of the regulations, as stated in the
preamble to the IFR.’’ 79 FR at 75,183.
Section 554(e) of the APA provides that
an ‘‘agency, with like effect as in the
case of other orders, and in its sound
discretion, may issue a declaratory order
to terminate a controversy or remove
uncertainty.’’ 5 U.S.C. 554(e). While
Section 554(e) declaratory orders have
issued infrequently in the APA’s
history, agencies have used them in the
past to, for example, interpret the
agency’s governing statute or its own
regulations, define terms of art, clarify
whether a matter falls within federal
regulatory authority, or address
questions of preemption.10 The
Department of Labor does not appear to
have ever issued a Section 554(e) order,
nor to have used such an order to
reverse an agency action that—under
Departmental regulations—constituted
‘‘the final . . . decision of the
Secretary,’’ 29 CFR 18.58 (2012).
During his more than two remaining
years in office, Secretary Thomas E.
Perez never issued the declaratory order
he had proposed. The roughly 1,050
remaining requests for NPWC review or
Center Director review (collectively the
SPWD administrative appeals) have
remained stayed.11 On June 24, 2019,
five former H–2B workers filed a
complaint alleging that DOL’s failure to
give effect to the 2013 SPWDs or resolve
their former employers’ SPWD
administrative appeals constitutes an
unreasonable delay and is arbitrary and
capricious under the APA. Calixto v.
Scalia, Civ. No. 19–1853 (D.D.C.).
Roughly five years after the issuance
of the Notice of Intent, six years after the
appeals were stayed, and almost seven
years since the year of temporary
employment at issue, it is time for the
Department to bring a resolution to this
matter.
III. The Department Will Not Issue a
Declaratory Order
The Department has determined not
to engage in an APA Section 554(e)
adjudication or to issue the proposed
declaratory order. Existing DOL
regulations, unlike the regulations of
some agencies, do not contemplate such
orders or provide procedures for their
10 Emily S. Bremer, The Agency Declaratory
Judgment, 78 Ohio St. L.J. 1169, 1203–04 (2017).
11 Employers filed over 1,400 SPWD
administrative appeals. Of these, roughly 1,050
were still pending when Island Holdings issued and
were stayed by OFLC. The other approximately 350
appeals were either rejected for late submission or
had already been resolved at the NPWC review
level and the employers had acquiesced by
declining to seek Center Director review.
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issuance. Indeed, DOL’s regulations
provide no mechanism at all for a
Department official to review BALCA
decisions regarding H–2B prevailing
wage determinations, stating instead
that the ‘‘decision of [BALCA] shall
become the final administrative
decision of the Secretary.’’ 29 CFR 18.58
(2012); see also 29 CFR 18.95 (2019).
There appears to be no precedent, at any
federal agency, for using a Section
554(e) order in circumstances like these.
This is not to say that it is appropriate
for BALCA to have the unreviewable
final say on questions of law and policy
presented to the Department. Indeed, in
order to establish a defined procedural
mechanism for review of decisions of
ALJs, the Department recently proposed
changes to its regulations to provide for
discretionary Secretarial review of
BALCA decisions in the H–2A, CW–1,
and PERM programs. See 85 FR 13,024
(Mar. 6, 2020). DOL and DHS also
intend to jointly issue a separate
proposed rule regarding the Secretary’s
review authority over BALCA decisions
in the H–2B program.12 See id. at 13,026.
IV. For Legal, Prudential, and
Programmatic Reasons, the Department
Will Accept the Decision in Island
Holdings
Even if there were an appropriate
procedural mechanism to do so, the
Department will not overrule Island
Holdings. BALCA’s decision—and not
the Notice of Intent—sets forth the
better view of law as to the 2013
SPWDs. Permitting Island Holdings to
remain ‘‘the final administrative
decision of the Secretary,’’ 29 CFR 18.58
(2012), is also more consistent with
programmatic, policy, and prudential
considerations.
A. Island Holdings Represents the Better
View of the Law
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1. The 2013 SPWDs Were Inconsistent
With DOL’s Regulations
DOL’s regulations did not contain any
express provisions regarding
calculating, issuing, or complying with
SPWDs. To the contrary, the regulations
provided that the original PWD ‘‘shall
apply and shall be paid . . . at a
minimum, for the duration of
employment,’’ 20 CFR 655.10(d) (2012),
id. § 655.20(f), and that employers agree
to pay the wage offered to U.S. workers
in recruitment (which could not be
lower than the prevailing wage) ‘‘during
12 The Department would not attempt to exercise
this new discretionary review authority to reverse
BALCA decisions applying Island Holdings to the
2013 SPWDs, in light of the passage of time and the
factors addressed below, among other
considerations.
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the entire period of the approved H–2B
labor certification,’’ id. § 655.22(e);
Island Holdings at 8–10. As BALCA
noted, the requirement to continue
paying the offered wage throughout the
employment is part of an employer’s
obligation to offer to U.S. workers wages
‘‘not less favorable than those offered to
the H–2B workers.’’ Island Holdings at
11 (citing 20 CFR 655.22(a)). An
employer could not agree to, or comply
with, this obligation if DOL could raise
PWDs during the certified
employment.13
This is consistent with DOL’s
longstanding interpretation of the
regulations and with its historical
practice.14 Before 2013, DOL had never
imposed new prevailing wage rates on
employers during the course of the
employment. DOL only departed from
this interpretation to issue and justify
the 2013 SPWDs, relying on dicta from
the CATA court.15 See, e.g., Notice of
Intent, 79 FR at 75,182. DOL now
returns to the best reading of its own
regulations.
Under these circumstances, neither
the IFR’s preamble nor the Form 9142
attestation could have served as
authority to issue the 2013 SPWDs.
Island Holdings at 11–14. The IFR’s
preamble described DOL’s intent to
issue the SPWDs, but a preamble cannot
impose legal obligations that contradict
the regulatory text. Id. at 12 (citing Nat’l
Wildlife Fed’n v. EPA, 286 F.3d 554,
569–70 (DC Cir. 2002)). Likewise, the
regulations do not support adjusting the
prevailing wage rate on the basis of an
employer’s attestation that it will pay
the prevailing wage rate that ‘‘is or will’’
be issued.16 Doing so is also
inconsistent with principles requiring
proper notice to regulated parties of
their legal obligations. Finally, the
13 This does not mean that DOL could have never
issued an SPWD under the regulations as they
existed at the time. There may have been instances
where doing so would have been appropriate, such
as to correct an inadvertent error in a PWD, rather
than for purposes of programmatic administration
of the H–2B program.
14 See, e.g., Defs.’ Response in Opp. to Mot. for
Additional Relief, CATA v. Solis, Civ. No. 09–240,
2010 WL 4823236 (Nov. 24, 2010) (E.D. Pa.), ECF
No. 89.
15 See CATA v. Solis, Civ. No. 09–240, 2010 WL
4823236, at *2–3 (E.D. Pa. Nov. 24, 2010). The
CATA plaintiffs had not challenged these portions
of the regulations. They were only at issue because,
as DOL interpreted them, they precluded the
additional relief the plaintiffs requested—relief the
court held it was powerless to grant. Id. at *3.
16 This analysis is distinguished from instances in
which (i) a preamble merely explains or clarifies
language in the existing regulations in a manner
consistent with—as opposed to in contradiction
with—the regulatory text or (ii) an employer’s
attestation forms the basis of an enforcement action
where the underlying attestation is supported—not
contradicted—by the regulatory text.
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14709
weight to be given to the attestation’s
language in this context is diminished
further by the fact that the language was
adopted in conjunction with the 2011
Rule, which was barred from taking
effect.
2. The 2013 SPWDs Were Inconsistent
With the H–2B Labor Certification
Program’s Structure and Primary
Purposes
The H–2B program balances the need
for temporary, seasonal foreign workers
in certain industries against the need to
protect U.S. workers’ jobs, wages, and
working conditions. As evidenced by
their role in the labor certification
process, H–2B prevailing wages are
primarily intended to bolster the
protection side of the equation. The
2013 SPWDs must be assessed in light
of this structure and purpose.
Ordinarily, PWDs safeguard U.S.
workers in at least two important ways.
First, they serve to require employers to
recruit U.S. workers at a wage rate that
is not artificially depressed by the
importation of temporary foreign labor.
The 2013 SPWDs never fulfilled this
purpose because H–2B employers were
not required to conduct additional
recruitment of U.S. workers at the
SPWD rate. Ordering employers to pay
foreign H–2B workers a higher wage
than they offered to U.S. workers in
recruitment is inconsistent with the
central purpose of the mandatory
recruitment process. See Island
Holdings at 14.
Second, the employer’s obligation to
pay, at minimum, the PWD wage rate for
the duration of the H–2B employment
protects all similarly employed U.S.
workers from wage depression. The
delay resulting from the stay of more
than 1,050 administrative appeals
means that the SPWDs at issue in those
actions will never have this impact on
the wages of similarly employed
workers. Had those SPWD wages been
paid at the time the work was
performed, these H–2B employers’
competitors might have been pressured
to raise wages in order to attract and
retain workers. But now, seven years
after their issuance, these SPWDs
cannot serve this purpose.17
By and large, then, U.S workers
whose wages may have been depressed
in 2013 would not benefit from now
17 Ordinarily, the protective purpose of PWDs is
also furthered by WHD’s investigations and
enforcement actions, including for back wages for
both U.S. and H–2B workers. Such investigations
and actions ensure H–2B employers comply with
their obligations, including those obligations
designed to protect U.S. workers. However, for the
reasons set forth infra, enforcement of the 2013
SPWDs would be neither feasible nor prudent.
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Federal Register / Vol. 85, No. 50 / Friday, March 13, 2020 / Notices
affirming the 2013 SPWDs. By
definition, H–2B employers’ efforts to
recruit U.S. workers were at best only
partially successful, meaning that
executing the Notice of Intent’s plan
would result in ordering back wages
predominantly to H–2B workers.18
Creating an obligation to pay such back
wages arguably protects those H–2B
workers from substandard wages, but
that is not the primary purpose of
prevailing wages. The large disparity
between the back wages that would be
owed to H–2B and U.S. workers places
the 2013 SPWDs in tension with the
temporary labor certification program’s
predominant concerns of protecting the
domestic workforce from wage
depression and from preferential
treatment of H–2B workers.
3. CATA II Did Not Compel DOL To
Issue the 2013 SPWDs
Despite earlier suggestions by the
Department to the contrary, CATA II did
not require issuance of the 2013 SPWDs.
Island Holdings at 14; see, e.g., 79 FR at
75,182 (speculating that ‘‘the CATA
court expected’’ DOL to issue the
SPWDs while acknowledging that CATA
II might not have ‘‘required’’ it to do so).
Far from ordering adjustment of PWDs
already issued under the 2008
Methodology, the court spoke only to
the likelihood of its order disrupting
determinations to be made in the future.
CATA II, 933 F. Supp. 2d at 715. Nor
may such a directive in CATA II
properly be inferred.19 CATA II did not
revisit the court’s previous rulings that
(i) the court lacked power to order DOL
to issue SPWDs and (ii) use of the 2008
Methodology had been permissible
following CATA I.
jbell on DSKJLSW7X2PROD with NOTICES
B. Prudential and Programmatic
Considerations Favor Accepting Island
Holdings
DOL has considered the effect that
withdrawing the Notice of Intent, and
allowing Island Holdings to remain the
18 If employers did recruit any U.S. workers in
conjunction with their H–2B applications, the
SPWD Notices required them to pay those U.S.
workers as well as the H–2B workers at least the
SPWD wage rate for the remainder of the certified
employment.
19 DOL was not required to give CATA II
retroactive effect by issuing the 2013 SPWDs. The
applicable case law does not set a default
requirement that agencies nullify actions
undertaken pursuant to a rule before that rule is
vacated. Council Tree Communc’ns, Inc. v. FCC,
619 F.3d 235, 257 (3d Cir. 2010) (declining to
nullify certain auction results). Further, CATA II
did not reinstate the status quo ante and instead
necessitated promulgation of a new rule. Using a
new rule to adjust actions taken before the rule
issued is arguably in tension with the prohibition
against retroactive rulemaking absent congressional
authorization. See Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208 (1988).
VerDate Sep<11>2014
18:16 Mar 12, 2020
Jkt 250001
‘‘the final administrative decision of the
Secretary,’’ 29 CFR 18.58 (2012), will
have on workers, both H–2B and U.S.
DOL has also considered reliance
interests and the impact that
individually adjudicating the stayed
SPWD administrative appeals would
have on time-sensitive programs, likely
for little practical benefit. These
prudential and programmatic concerns
weigh in favor of withdrawing the
Notice of Intent.
1. Individually Adjudicating the
Employer Appeals Would Disrupt
Administration of Labor Certification
Programs for Little Practical Benefit
Overruling Island Holdings and
leaving OFLC to individually adjudicate
each of the roughly 1,050 pending
SPWD administrative appeals relating to
the 2013 employment season would
drain significant DOL resources.20 This
would substantially detract from the
pursuit of other priorities and, in the
end, would likely prove futile given that
the passage of time has diminished
employers’ ability to comply with the
2013 SPWDs and WHD’s preparedness
to enforce them.
ETA estimates that notifying the
employers, reviewing the case files,
issuing Center Director opinions,
processing BALCA requests, and taking
BALCA-directed action could
collectively take over two-and-a-half
years to complete.21 This work would
impact OFLC’s usual case-processing
tasks, including in time-sensitive
programs. ETA’s normal business lines
would see an increase in processing
times and backlogs, including during
high-filing periods. For example, it
currently takes on average 110 days to
process prevailing wage determinations
in the CW–1 and PERM programs, but
that could increase to approximately
150 days if, without acquiring new
resources, ETA were tasked with
20 Even if the Secretary issued a declaratory order
overruling Island Holdings and setting the policy
for OFLC to apply to various arguments raised by
employers challenging the 2013 SPWDs, OFLC
would have to review each case file to determine
which arguments a given employer raised and then
draft an individualized opinion accordingly.
Moreover, OFLC would have to address any
arguments that, even if the 2013 SPWDs were valid,
particular SPWDs were improperly calculated
under the IFR’s methodology. Application of Island
Holdings avoids such individualized review and
adjudication because its conclusion that the 2013
SPWDs were invalid may be uniformly applied to
all the remaining requests for review of 2013
SPWDs.
21 Specifically, ETA estimates that this work
could occupy 706 workdays and would require the
use of four senior analysts, roughly half-time each.
Such analysts have experience in, and are typically
tasked with, making prevailing wage
determinations for the H–2B, CW–1, PERM, and H–
1B programs.
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individually adjudicating the SPWD
administrative appeals.22
Even if the Department were to
expend these considerable resources on
the 2013 case files, there would likely
be little practical benefit to doing so,
given the significant obstacles that now
exist to compliance and enforcement.
There would be several hurdles to an
employer’s ability to now comply with
the 2013 SPWDs by issuing back wages:
The passage of time since the work at
issue was performed; the fact that the
regulations in place in 2013 had no
requirement that employers retain the
relevant employment records and
therefore records are likely to have been
lost or destroyed; and the difficulty of
locating the relevant workers—most of
whom, by definition, reside outside the
United States and came here to work
here temporarily. Were DOL, at this late
date, to finalize the SPWDs at issue in
the stayed administrative appeals, these
and other factors would also present
substantial barriers to enforcement. To
be actionable, H–2B violations must be
willful. 8 U.S.C. 1184(c)(14)(D)
(prohibiting a ‘‘willful failure to comply
with the requirements of [the H–2B
provisions] that constitutes a significant
deviation from the terms and conditions
of a petition’’). It is questionable
whether an employer’s decision to
adhere to an initial PWD, rather than to
an SPWD judged unlawful in a ‘‘final’’
decision of the Department, could
properly be deemed ‘‘willful.’’
Regardless, the practical obstacles to
compliance described above would also
pose serious challenges to proving the
willfulness of any subsequent noncompliance. Indeed, the challenges
presented by lost records, faded
memories, and hard-to-locate workers
are precisely the type of staleness
concerns that underlie WHD’s general
policy of limiting its investigations to
violations alleged to have taken place
within the last two years. WHD Field
Operations Handbook 76c03(a).
In short, the Department has strong
programmatic reasons to accept the
‘‘final’’ decision in Island Holdings,
rather than expending thousands of
work hours, in derogation of other
responsibilities, to issue decisions that
would be difficult ever to obey or
enforce.
22 Processing times for H–2B prevailing wage
requests, which are currently 30 days on average,
would not be impacted due to regulatory
requirements.
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Federal Register / Vol. 85, No. 50 / Friday, March 13, 2020 / Notices
Signed: at Washington, DC this 9th of
March 2020.
Eugene Scalia,
Secretary of Labor.
jbell on DSKJLSW7X2PROD with NOTICES
2. Prudential Considerations Do Not
Warrant Issuing the Proposed
Declaratory Order or Continuing To
Contest Island Holdings
The H–2B workers and U.S. workers
recruited in connection with the
appealing employers’ H–2B applications
understood their work would be
temporary, and they accepted and
performed the work at the offered wage.
Although the 2013 SPWDs may have
given them an initial expectancy of
increased wages or back pay, those
SPWDs subject to administrative
appeals were properly challenged and
never became final because the stay of
the appeals prevented completion of
administrative review. Island
Holdings—a ‘‘final decision’’ of the
Secretary—held the SPWDs were ultra
vires, and no court has ever invalidated
that holding. The Notice of Intent
proposed overruling Island Holdings,
but the Notice never progressed beyond
a mere proposal. Five years have passed,
and DOL never issued a final
declaratory order overturning Island
Holdings. In these circumstances,
reliance on those SPWDs would not
have been reasonable.
On the other hand, many parties
relied on the original PWDs before
recruitment and hiring. Prior to 2013,
DOL had never issued SPWDs, at least
not on a large scale to all H–2B
employers with then-extant TLCs. Nor
did the text of DOL’s regulations
provide notice of the potential for
SPWDs, much less specify the potential
increase to wages. Further, the 2013
SPWDs were issued not only to
employers who had yet to hire H–2B
workers, but also to employers already
employing H–2B workers. Such
employers had already paid the costs of
recruiting workers, and would have had
limited options for responding to the
SPWDs’ increased costs: H–2B workers,
once employed, must be employed fulltime; the employer must pay return
transportation for H–2B workers
dismissed earlier than scheduled; and
the employer cannot lay off similarly
employed U.S. workers. 20 CFR
655.22(h), (i), (m) (2012). And, while
employers might have inferred from
their Form 9142s that it was possible
DOL would issue SPWDs, there was no
notice that this would in fact occur, let
alone notice of the amount or timing of
the SPWD, or the methodology that DOL
would use.
V. Conclusion
For all the foregoing reasons, the
Notice of Intent is withdrawn.
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18:16 Mar 12, 2020
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[FR Doc. 2020–05205 Filed 3–12–20; 8:45 am]
BILLING CODE 4510–HL–P
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
[Docket No. OSHA–2018–0005]
Whistleblower Stakeholder Meeting
Occupational Safety and Health
Administration (OSHA), Labor.
ACTION: Notice of public meeting.
AGENCY:
The Occupational Safety and
Health Administration (OSHA) is
announcing a public meeting to solicit
comments and suggestions from
stakeholders on issues facing the agency
in the administration of the
whistleblower laws it enforces.
DATES: The public meeting will be held
on May 12, 2020, from 1:00 p.m. to 3:00
p.m., ET. Persons interested in attending
the meeting must register by April 28,
2020. In addition, comments relating to
the ‘‘Scope of Meeting’’ section of this
document must be submitted in written
or electronic form by May 5, 2020.
ADDRESSES: The public meeting will be
held in Room C5525, U.S. Department
of Labor, 200 Constitution Avenue NW,
Washington, DC 20210.
Written Comments: Submit written
comments to the OSHA Docket Office,
Docket No. OSHA–2018–0005, Room N–
3653, U.S. Department of Labor, 200
Constitution Avenue NW, Washington,
DC 20210; telephone (202) 693–2350.
You may submit materials, including
attachments, electronically at https://
www.regulations.gov, which is the
Federal eRulemaking portal. Follow the
on-line instructions for submissions. All
comments should be identified with
Docket No. OSHA–2018–0005.
Registration to Attend and/or to
Participate in the Meeting: If you wish
to attend the public meeting, make an
oral presentation at the meeting, or
participate in the meeting via telephone,
you must register using this link https://
www.eventbrite.com/e/whistleblowerstakeholder-meeting-tickets92898902117 by close of business on
April 28, 2020. Participants may speak
and hand out written materials, but
there will not be an opportunity to give
an electronic presentation. Actual times
provided for presentation will depend
on the number of requests, but no more
than 10 minutes per participant. There
is no fee to register for the public
SUMMARY:
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meeting. Registration on the day of the
public meeting will be permitted on a
space-available basis beginning at 12:00
p.m., ET. After reviewing the requests to
present, each participant will be
contacted prior to the meeting with the
approximate time that the participant’s
presentation is scheduled to begin.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Mr. Frank
Meilinger, Director, OSHA Office of
Communications, U.S. Department of
Labor; telephone: (202) 693–1999;
email: meilinger.francis2@dol.gov.
For general information: Mr. Anthony
Rosa, Acting Director, OSHA Directorate
of Whistleblower Protection Programs,
U.S. Department of Labor; telephone:
(202) 693–2199; email: osha.dwpp@
dol.gov.
SUPPLEMENTARY INFORMATION:
Scope of Meeting
OSHA is interested in obtaining
information from the public on key
issues facing the agency’s whistleblower
program. This meeting is the fifth in a
series of meetings requesting public
input on this program. The agency is
seeking suggestions on how it can
improve its program. Please note that
the agency does not have the authority
to change the regulatory language and
requirements of the laws it enforces. In
particular, the agency invites input on
the following:
1. How can OSHA deliver better
whistleblower customer service?
2. What kind of assistance can OSHA
provide to help explain the agency’s
whistleblower laws to employees and
employers?
3. Where should OSHA target
whistleblower outreach efforts?
Request for Comments
Regardless of attendance at the public
meeting, interested persons may submit
written or electronic comments (see
ADDRESSES). Submit a single copy of
electronic comments or two paper
copies of any mailed comments. To
permit time for interested persons to
submit data, information, or views on
the issues in the ‘‘Scope of Meeting’’
section of this notice, submit comments
by May 5, 2020, please include Docket
No. OSHA–2018–0005. Comments
received may be seen in the OSHA
Docket Office, (see ADDRESSES ),
between 10:00 a.m. and 3:00 p.m., ET,
Monday through Friday.
Access to the Public Record
Electronic copies of this Federal
Register notice are available at https://
www.regulations.gov. This notice, as
well as news releases and other relevant
E:\FR\FM\13MRN1.SGM
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]]>Agencies
[Federal Register Volume 85, Number 50 (Friday, March 13, 2020)]
[Notices]
[Pages 14706-14711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05205]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Withdrawal of Notice of Intent To Issue a Declaratory Order
AGENCY: Office of the Secretary.
ACTION: Notice of withdrawal.
-----------------------------------------------------------------------
SUMMARY: For legal, programmatic, and prudential reasons, the
Department of Labor, through the Office of the Secretary of Labor, is
withdrawing its December 17, 2014 Notice of Intent to Issue a
Declaratory Order.
DATES: This Withdrawal Notice is effective March 9, 2020.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Department of Labor (the Department or DOL), through the Office
of the Secretary of Labor and pursuant to 5 U.S.C. 554(e), is
withdrawing its December 17, 2014 Notice of Intent to Issue a
Declaratory Order, 79 FR 75,179 (Dec. 17, 2014) (Notice of Intent). The
Notice of Intent proposed to overrule the Board of Alien Labor
Certification Appeals' (BALCA) decision in Island Holdings, 2013-PWD-
00002 (BALCA Dec. 3, 2013) (en banc), through an adjudicatory
proceeding that would result in a declaratory order issued under 5
U.S.C. 554(e). Island Holdings is among the roughly 1,050
administrative appeals that have been pending before DOL's National
Prevailing Wage Center (NPWC) since 2013, and that challenge DOL's
issuance of supplemental prevailing wage determinations (SPWDs) to
certain H-2B employers (the 2013 SPWDs).
Although the Notice of Intent was published over five years ago,
and concerned the wages of temporary workers from more than a year
before that, the Department never issued the proposed declaratory
order. The Notice of Intent has left interested parties under a cloud
of uncertainty, and the passage of time has reduced the feasibility of
compliance with and enforcement of the 2013 SPWDs. The Department is
now withdrawing the Notice of Intent to provide certainty and finality,
and to implement the resolution that best accords with the regulatory
framework and relevant policy and programmatic considerations.
The Department's decision follows careful consideration of the
applicable law and the impact of the various options on both U.S. and
H-2B workers, employers, and administration of the H-2B labor
certification program itself. The Department concludes that (1)
issuance of the proposed Section 554(e) declaratory order would not be
appropriate under the circumstances and the relevant regulations; (2)
on the merits, Island Holdings is well-reasoned and reflects the better
view of the law; and (3) prudential and programmatic considerations
weigh in favor of withdrawing the Notice of Intent and accepting the en
banc Island Holdings ruling.
II. Regulatory And Procedural Background 1
---------------------------------------------------------------------------
\1\ The relevant background has been summarized on multiple
occasions. See, e.g., Notice of Intent, 79 FR at 75,180-83; Island
Holdings at 2-7; Comit[eacute] de Apoyo a los Trabajadores
Agr[iacute]colas (CATA) v. Perez, 46 F. Supp. 3d 550, 556-59 (E.D.
Pa. 2014) (CATA III); CATA v. Solis, 933 F. Supp. 2d 700, 703-09
(E.D. Pa. 2013) (CATA II); La. Forestry Ass'n, Inc. v. Sec'y of
Labor, 889 F. Supp. 2d 711, 715-19 (E.D. Pa. 2012).
---------------------------------------------------------------------------
A. Regulatory Background 2
---------------------------------------------------------------------------
\2\ This section summarizes and cites the statutory and
regulatory provisions as they existed at the time relevant to the
SPWD administrative appeals. This is not intended to serve as a
summary of the current law or its interpretation.
---------------------------------------------------------------------------
A prospective H-2B employer must obtain a temporary labor
certification (TLC) from the Employment and Training Administration's
(ETA) Office of Foreign Labor Certification (OFLC). 8 CFR
214.2(h)(6)(iii)(A). Through the TLC, DOL advises the Department of
Homeland Security (DHS) that U.S. workers capable of performing the
temporary services or labor sought by the employer are not available
and that H-2B workers' employment will not adversely affect the wages
and working conditions of similarly employed U.S. workers. Id.; see
also 8 U.S.C. 1182(a)(5)(A)(i)(I)-(II). To that end, a TLC may issue
only if U.S. workers are not available to fill the given position at
what OFLC determines to be the ``prevailing wage.'' See 20 CFR 655.10
(2012).\3\
---------------------------------------------------------------------------
\3\ Citations to Title 20 of the 2012 edition of the Code of
Federal Regulations are to those provisions in effect when that
edition was published, and such citations reference provisions
promulgated in 2008, see 73 FR 78,020 (Dec. 19, 2008). The 2012
edition separately included, for convenience, provisions associated
with a rulemaking that had not yet gone into effect and, as
discussed infra, never did.
---------------------------------------------------------------------------
Prevailing wages are designed to ensure that jobs are advertised
and offered to U.S. workers at a wage reflective of the local economy
and to prevent employers from undercutting U.S. workers' wages. A
would-be H-2B employer initiates the process by requesting and
obtaining a prevailing wage determination (PWD) from OFLC. Id. Sec.
655.10(a).\4\ The employer must then recruit U.S. workers for the job
opportunity by advertising and offering the position at that prevailing
wage or higher. Id. Sec. Sec. 655.10(a)(3), 655.15. The wage used in
this recruitment is known as the ``offered wage.''
---------------------------------------------------------------------------
\4\ OFLC sets a validity period for each PWD, which is at
minimum three months and at maximum twelve months. Id. Sec.
655.10(d). The validity period dictates when an employer may begin
the recruitment process or file its TLC application, id. Sec.
655.10(a)(2), but does not govern the time period in which the
employer is required to offer and pay the prevailing wage.
---------------------------------------------------------------------------
If, after these domestic recruitment efforts, an employer still has
unmet labor needs, it applies for a TLC. Id. Sec. Sec. 655.15(a),
655.20(a). The employer agrees to abide by certain conditions,
including to pay workers the offered wage, which cannot be lower than
the PWD rate, ``during the entire period of the approved H-2B labor
certification.'' Id. Sec. 655.22(e); see also id. Sec. 655.10(d) (the
PWD applies ``for the duration of'' a given certified H-2B employment).
The employer also attests that it will not offer H-2B workers more
favorable wages than those it offered to U.S. workers. Id. Sec.
655.22(a). After obtaining a TLC, an employer petitions DHS to
[[Page 14707]]
employ H-2B workers for the duration and conditions specified in the
TLC. 8 CFR 214.2(h)(6)(iii)(A). DOL's Wage and Hour Division (WHD), as
necessary, investigates and brings enforcement actions for violations
of the employer's obligations.
An employer who disputes a PWD may seek review by NPWC. 20 CFR
655.10(g) (2012). If still dissatisfied, the employer may seek review
by the NPWC Center Director. Id.; see also id. Sec. 655.11(a)-(d). As
a final avenue of administrative review, the employer may appeal the
Center Director's decision to BALCA, and the resulting decision
represents ``the final administrative decision of the Secretary.'' \5\
Id. Sec. 655.11(e); 29 CFR 18.58 (2012).\6\ If an employer declines to
pursue review at any of these stages, it is deemed to have acquiesced
to the PWD or to the most recent administrative decision.
---------------------------------------------------------------------------
\5\ The BALCA consists of administrative law judges (ALJs)
within DOL assigned to review certain decisions pertaining to DOL's
foreign labor certification programs. See, e.g., 52 FR 11,217,
11,218 (Apr. 8, 1987).
\6\ This provision has since been slightly modified to provide
that BALCA's decision in this context constitutes the ``Secretary's
final administrative decision.'' 29 CFR 18.95 (2019).
---------------------------------------------------------------------------
B. Procedural Background
1. CATA I And The 2011 Rule
In 2008, DOL set forth a methodology via rulemaking for calculating
prevailing wages in the H-2B program (the 2008 Methodology) that became
the subject of a multi-year litigation. In a 2010 court decision in
that case, the 2008 Methodology was invalidated on procedural grounds.
CATA v. Solis, Civ. No. 09-240, 2010 WL 3431761, at *19 (E.D. Pa. Aug.
30, 2010) (CATA I). Citing the disruption that would result if DOL
could not use the methodology, the court allowed it 120 days to
``promulgate new, valid regulations for determining the prevailing wage
rate.'' Id. DOL lawfully continued to use the invalidated 2008
Methodology as it worked to issue a new rule.
Plaintiffs next sought to prohibit DOL from issuing any TLC unless
the employer agreed to comply with an SPWD resulting from any changes
in the methodology in the forthcoming rule. CATA v. Solis, Civ. No. 09-
240, 2010 WL 4823236, at *1 (E.D. Pa. Nov. 24, 2010). The Department
responded that such relief would force it to violate its own
regulations, under which the PWD was in effect ``for the duration of
employment.'' Id. at *1-2 (quoting 20 CFR 655.10(d)). The court held
that it lacked the authority to grant plaintiffs' request. It explained
that ``[u]nder plaintiffs' proposed relief, every H-2B employer who
received a conditional labor certification would have to obtain [an
SPWD] after DOL issued revised wage regulations'' and that the court's
equitable authority did not extend to requiring DOL to undergo such
``extensive administration and management.'' Id. at *3. Nevertheless,
the court stated in dicta that DOL's interpretation of the regulations
was erroneous and that nothing precluded DOL from issuing such
conditional labor certifications as an ``interim measure[ ].'' Id. at
*1-2.
On January 19, 2011, DOL promulgated a rule containing a new
prevailing wage methodology (the 2011 Rule). 76 FR 3,452 (Jan. 19,
2011). In conjunction with this new rule and in anticipation of it
going into effect, DOL conditioned TLCs on an employer's agreement to
later receive and comply with an SPWD calculated under the 2011 Rule's
methodology. 76 FR 21,036 (Apr. 14, 2011). To implement this change,
DOL amended ETA's Form 9142 to contain an attestation in which the
employer agreed to pay at least the prevailing wage rate that ``is or
will be issued by'' DOL. Id.; Form 9142, Appendix B.1 Sec. B(5).
The 2011 Rule never went into effect due to litigation and to
congressional appropriations riders blocking the use of funds for its
implementation, administration, or enforcement. See 78 FR 24,047,
24,052 (Apr. 24, 2013). Despite its connection to the blocked 2011
Rule, the 2011 attestation remained on the Form 9142.
2. CATA II, The Interim Final Rule, And The 2013 SPWDs
Since the 2011 Rule never went into effect, DOL continued to use
the 2008 Methodology. The CATA plaintiffs again sought invalidation of
the methodology and a permanent injunction barring its use. CATA II,
933 F. Supp. 2d at 709. On March 21, 2013, the court held that not only
did the procedures by which the 2008 Methodology was adopted violate
the APA, as ruled in CATA I, but also that the substance of the
Methodology conflicted with the APA's requirement of reasoned decision-
making. Id. at 710-13. Specifically, the court said that the 2008
Methodology resulted in TLCs that did not comply with the statutory and
regulatory mandate that DOL ensure H-2B workers' employment will not
adversely affect similarly employed U.S. workers' wages. Id. at 711-13.
In reaching this conclusion, the court relied on DOL's statement in the
preamble to the 2011 Rule (a rule that never took effect) that the 2008
Methodology set artificially low wage rates that harmed U.S. workers.
Id. The court vacated the 2008 Methodology and allowed the Department
thirty days to ``come into compliance.'' Id. at 716.
After CATA II, OFLC immediately ceased issuing PWDs in the H-2B
program based on the 2008 Methodology. 78 FR 19,098, 19,099 (Mar. 29,
2013). On April 24, 2013, DHS and DOL issued an interim final rule
(IFR) revising the methodology. 78 FR 24,047 (Apr. 24, 2013). The IFR's
methodology generally resulted in higher prevailing wages than under
the 2008 Methodology, id. at 24,058 (estimating as much as a $2.12
increase in the weighted average hourly rate), and was effective
immediately, id. at 24,055. OFLC resumed processing pending H-2B
requests for PWDs using the new methodology.
The IFR's preamble also suggested something more: it stated that H-
2B employers who had already received PWDs would be issued SPWDs,
calculated under the new methodology--including employers who had
already received TLCs and were currently employing H-2B workers. Id. at
24,055-56. The preamble explained that the employers' obligation to pay
wages consistent with these SPWDs derived from CATA II and the Form
9142 attestation to offer and pay the most recent prevailing wage
issued by DOL. Id. at 24,055. The IFR itself, however, modified only
the regulatory text setting forth the prevailing wage methodology. It
did not alter the text under which PWDs and offered wages apply
throughout the certified employment.
On April 25, 2013, DOL clarified in a ``frequently asked
questions'' document that employers would be ``required to offer and
pay'' at a minimum the SPWD wage rate ``for any work performed on and
after the date the employer receives the supplemental determination''
(SPWD Notice).\7\ Thus, the SPWD rates would apply to the remaining
work performed in conjunction with the employers' TLCs for the 2013
season. Notably, the SPWD Notices did not require employers to reopen
or conduct additional recruitment of U.S. workers at the SPWD rate.
---------------------------------------------------------------------------
\7\ Frequently Asked Questions, Interim Final Rule, Wage
Methodology for the Temporary Non-Agricultural Employment H-2B
Program, Part 2, at 2 (ETA, OFLC Apr. 25, 2013), https://www.foreignlaborcert.doleta.gov/pdf/faq_final_rule_april_2013.pdf.
---------------------------------------------------------------------------
DOL completed issuance of SPWD Notices on August 12, 2013.\8\ See
79 FR
[[Page 14708]]
at 75,181. In each Notice, DOL informed the employer that it could seek
redetermination of the SPWD.
---------------------------------------------------------------------------
\8\ This included issuance of SPWDs to employers, who (i) had
already received a TLC and were currently employing H-2B workers;
(ii) had received a TLC and had an H-2B petition pending at DHS; and
(iii) had completed recruitment of U.S. workers and had a TLC
application pending at OFLC. See Defs.' Mem. ISO Mot. for a
Protective Order at 5, CATA v. Perez, Civ. No. 09-240 (E.D. Pa.),
ECF No. 189-1 (Protective Order Mot.) (detailing the categories).
Because of the manner in which H-2B case files are maintained by
DOL, it would be exceptionally difficult and time-consuming--and
potentially impossible--to determine, seven years after the fact,
which employers fell into each of these three groups and the scope
of worker positions impacted.
---------------------------------------------------------------------------
Employers filed more than 1,400 requests for NPWC redetermination.
See Protective Order Mot. at 5. Because an SPWD is not a final agency
action until the employer has exhausted all administrative review and
appeal processes, an appealing employer does not have an obligation to
comply with the SPWD unless or until the SPWD is affirmed at the
conclusion of this review and appeal.
3. The Island Holdings Administrative Appeal and CATA III
Before CATA II and publication of the IFR, OFLC had granted Island
Holdings, LLC (Island Holdings) three TLCs for the 2013 season. Island
Holdings at 6. The TLCs were premised on PWDs calculated under the 2008
Methodology and certified employment dates going into November 2013.
Id.; 79 FR at 75,181. On May 6, 2013, Island Holdings received SPWD
Notices for each of its TLCs setting forth prevailing wages higher than
those in its PWDs. Island Holdings at 6-7. On May 23, 2013, Island
Holdings filed an administrative appeal to BALCA arguing, inter alia,
that DOL lacked authority to issue SPWDs in the manner contemplated in
the IFR's preamble. See 79 FR at 75,181.
At this time, the number of requests for NPWC and Center Director
review of the 2013 SPWDs was rapidly rising and had resulted in an
extraordinarily high case volume. It was apparent that a global
resolution of the legal issues presented by these administrative
appeals would be instrumental to the appeals' fair and expeditious
resolution. Thus, on June 6, 2013, DOL requested that BALCA hear Island
Holdings' three combined appeals en banc, explaining that the argument
that DOL lacked authority to issue the 2013 SPWDs presented ``a matter
of exceptional importance which could impact a significant number of
additional cases . . . .'' Certifying Officer's Request for En Banc
Consideration, at 1-2, Island Holdings, 2013-PED-00002. BALCA's en banc
review was expected and intended to (i) address the question of DOL's
authority to issue the SPWDs and (ii) serve as a bellwether decision
that would impact DOL's adjudication of the other SPWD administrative
appeals presenting this question. After a brief remand to the NPWC,
which relied on the IFR's preamble to affirm the SPWDs, the case became
ripe for BALCA's consideration. 79 FR at 75,181.
On December 3, 2013, the en banc BALCA unanimously ruled to vacate
Island Holdings' SPWDs. Island Holdings at 15. BALCA held that DOL
lacked the authority to issue SPWDs where it had already approved and
issued a TLC based on the 2008 Methodology. BALCA concluded that
nothing in DOL's regulations contemplated the issuance of the 2013
SPWDs, id. at 11-12, and it rejected DOL's argument that CATA II
required DOL to issue them, id. at 14. Moreover, BALCA held that the
relevant attestation on the Form 9142 could not serve as the authority
to issue the 2013 SPWDs, since it lacked a foundation in the regulatory
text. Id. at 12-14. Pursuant to DOL's regulations, this decision
constituted ``the final administrative decision of the Secretary.'' 29
CFR 18.58 (2012).\9\
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\9\ Despite BALCA's remand to the NPWC with instructions to
vacate the SPWDs issued to Island Holdings, NPWC has yet to do so.
See CATA III, 46 F. Supp. 3d at 562.
---------------------------------------------------------------------------
On December 20, 2013, after the CATA plaintiffs filed a new
lawsuit, OFLC stayed further action on all pending SPWD administrative
appeals. See CATA III, 46 F. Supp. 3d at 557. Plaintiffs asked the
district court to set Island Holdings aside, arguing that BALCA, which
is composed of ALJs, exceeded its authority by overruling the Secretary
on issues of law and policy. Id. at 555. In tension with its prior
representation when requesting en banc BALCA review, DOL stated that
Island Holdings merely ``represents a resolution of that individual
case''; ``BALCA's decision does not represent the legal position of the
Secretary of Labor,'' DOL said. Id. (citation omitted). On July 23,
2014, the court dismissed plaintiffs' complaint on standing and
ripeness grounds. Id. at 560-64. Despite this holding, OFLC continued
to stay the SPWD administrative appeals.
4. Notice of Intent To Issue a Declaratory Order
Nearly a year after OFLC stayed the SPWD administrative appeals, on
December 17, 2014, the Office of the Secretary published the Notice of
Intent proposing to overrule Island Holdings through a declaratory
order issued under 5 U.S.C. 554(e), which would ``reaffirm the
Secretary's interpretation of the regulations, as stated in the
preamble to the IFR.'' 79 FR at 75,183. Section 554(e) of the APA
provides that an ``agency, with like effect as in the case of other
orders, and in its sound discretion, may issue a declaratory order to
terminate a controversy or remove uncertainty.'' 5 U.S.C. 554(e). While
Section 554(e) declaratory orders have issued infrequently in the APA's
history, agencies have used them in the past to, for example, interpret
the agency's governing statute or its own regulations, define terms of
art, clarify whether a matter falls within federal regulatory
authority, or address questions of preemption.\10\ The Department of
Labor does not appear to have ever issued a Section 554(e) order, nor
to have used such an order to reverse an agency action that--under
Departmental regulations--constituted ``the final . . . decision of the
Secretary,'' 29 CFR 18.58 (2012).
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\10\ Emily S. Bremer, The Agency Declaratory Judgment, 78 Ohio
St. L.J. 1169, 1203-04 (2017).
---------------------------------------------------------------------------
During his more than two remaining years in office, Secretary
Thomas E. Perez never issued the declaratory order he had proposed. The
roughly 1,050 remaining requests for NPWC review or Center Director
review (collectively the SPWD administrative appeals) have remained
stayed.\11\ On June 24, 2019, five former H-2B workers filed a
complaint alleging that DOL's failure to give effect to the 2013 SPWDs
or resolve their former employers' SPWD administrative appeals
constitutes an unreasonable delay and is arbitrary and capricious under
the APA. Calixto v. Scalia, Civ. No. 19-1853 (D.D.C.).
---------------------------------------------------------------------------
\11\ Employers filed over 1,400 SPWD administrative appeals. Of
these, roughly 1,050 were still pending when Island Holdings issued
and were stayed by OFLC. The other approximately 350 appeals were
either rejected for late submission or had already been resolved at
the NPWC review level and the employers had acquiesced by declining
to seek Center Director review.
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Roughly five years after the issuance of the Notice of Intent, six
years after the appeals were stayed, and almost seven years since the
year of temporary employment at issue, it is time for the Department to
bring a resolution to this matter.
III. The Department Will Not Issue a Declaratory Order
The Department has determined not to engage in an APA Section
554(e) adjudication or to issue the proposed declaratory order.
Existing DOL regulations, unlike the regulations of some agencies, do
not contemplate such orders or provide procedures for their
[[Page 14709]]
issuance. Indeed, DOL's regulations provide no mechanism at all for a
Department official to review BALCA decisions regarding H-2B prevailing
wage determinations, stating instead that the ``decision of [BALCA]
shall become the final administrative decision of the Secretary.'' 29
CFR 18.58 (2012); see also 29 CFR 18.95 (2019). There appears to be no
precedent, at any federal agency, for using a Section 554(e) order in
circumstances like these.
This is not to say that it is appropriate for BALCA to have the
unreviewable final say on questions of law and policy presented to the
Department. Indeed, in order to establish a defined procedural
mechanism for review of decisions of ALJs, the Department recently
proposed changes to its regulations to provide for discretionary
Secretarial review of BALCA decisions in the H-2A, CW-1, and PERM
programs. See 85 FR 13,024 (Mar. 6, 2020). DOL and DHS also intend to
jointly issue a separate proposed rule regarding the Secretary's review
authority over BALCA decisions in the H-2B program.\12\ See id. at
13,026.
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\12\ The Department would not attempt to exercise this new
discretionary review authority to reverse BALCA decisions applying
Island Holdings to the 2013 SPWDs, in light of the passage of time
and the factors addressed below, among other considerations.
---------------------------------------------------------------------------
IV. For Legal, Prudential, and Programmatic Reasons, the Department
Will Accept the Decision in Island Holdings
Even if there were an appropriate procedural mechanism to do so,
the Department will not overrule Island Holdings. BALCA's decision--and
not the Notice of Intent--sets forth the better view of law as to the
2013 SPWDs. Permitting Island Holdings to remain ``the final
administrative decision of the Secretary,'' 29 CFR 18.58 (2012), is
also more consistent with programmatic, policy, and prudential
considerations.
A. Island Holdings Represents the Better View of the Law
1. The 2013 SPWDs Were Inconsistent With DOL's Regulations
DOL's regulations did not contain any express provisions regarding
calculating, issuing, or complying with SPWDs. To the contrary, the
regulations provided that the original PWD ``shall apply and shall be
paid . . . at a minimum, for the duration of employment,'' 20 CFR
655.10(d) (2012), id. Sec. 655.20(f), and that employers agree to pay
the wage offered to U.S. workers in recruitment (which could not be
lower than the prevailing wage) ``during the entire period of the
approved H-2B labor certification,'' id. Sec. 655.22(e); Island
Holdings at 8-10. As BALCA noted, the requirement to continue paying
the offered wage throughout the employment is part of an employer's
obligation to offer to U.S. workers wages ``not less favorable than
those offered to the H-2B workers.'' Island Holdings at 11 (citing 20
CFR 655.22(a)). An employer could not agree to, or comply with, this
obligation if DOL could raise PWDs during the certified employment.\13\
---------------------------------------------------------------------------
\13\ This does not mean that DOL could have never issued an SPWD
under the regulations as they existed at the time. There may have
been instances where doing so would have been appropriate, such as
to correct an inadvertent error in a PWD, rather than for purposes
of programmatic administration of the H-2B program.
---------------------------------------------------------------------------
This is consistent with DOL's longstanding interpretation of the
regulations and with its historical practice.\14\ Before 2013, DOL had
never imposed new prevailing wage rates on employers during the course
of the employment. DOL only departed from this interpretation to issue
and justify the 2013 SPWDs, relying on dicta from the CATA court.\15\
See, e.g., Notice of Intent, 79 FR at 75,182. DOL now returns to the
best reading of its own regulations.
---------------------------------------------------------------------------
\14\ See, e.g., Defs.' Response in Opp. to Mot. for Additional
Relief, CATA v. Solis, Civ. No. 09-240, 2010 WL 4823236 (Nov. 24,
2010) (E.D. Pa.), ECF No. 89.
\15\ See CATA v. Solis, Civ. No. 09-240, 2010 WL 4823236, at *2-
3 (E.D. Pa. Nov. 24, 2010). The CATA plaintiffs had not challenged
these portions of the regulations. They were only at issue because,
as DOL interpreted them, they precluded the additional relief the
plaintiffs requested--relief the court held it was powerless to
grant. Id. at *3.
---------------------------------------------------------------------------
Under these circumstances, neither the IFR's preamble nor the Form
9142 attestation could have served as authority to issue the 2013
SPWDs. Island Holdings at 11-14. The IFR's preamble described DOL's
intent to issue the SPWDs, but a preamble cannot impose legal
obligations that contradict the regulatory text. Id. at 12 (citing
Nat'l Wildlife Fed'n v. EPA, 286 F.3d 554, 569-70 (DC Cir. 2002)).
Likewise, the regulations do not support adjusting the prevailing wage
rate on the basis of an employer's attestation that it will pay the
prevailing wage rate that ``is or will'' be issued.\16\ Doing so is
also inconsistent with principles requiring proper notice to regulated
parties of their legal obligations. Finally, the weight to be given to
the attestation's language in this context is diminished further by the
fact that the language was adopted in conjunction with the 2011 Rule,
which was barred from taking effect.
---------------------------------------------------------------------------
\16\ This analysis is distinguished from instances in which (i)
a preamble merely explains or clarifies language in the existing
regulations in a manner consistent with--as opposed to in
contradiction with--the regulatory text or (ii) an employer's
attestation forms the basis of an enforcement action where the
underlying attestation is supported--not contradicted--by the
regulatory text.
---------------------------------------------------------------------------
2. The 2013 SPWDs Were Inconsistent With the H-2B Labor Certification
Program's Structure and Primary Purposes
The H-2B program balances the need for temporary, seasonal foreign
workers in certain industries against the need to protect U.S. workers'
jobs, wages, and working conditions. As evidenced by their role in the
labor certification process, H-2B prevailing wages are primarily
intended to bolster the protection side of the equation. The 2013 SPWDs
must be assessed in light of this structure and purpose.
Ordinarily, PWDs safeguard U.S. workers in at least two important
ways. First, they serve to require employers to recruit U.S. workers at
a wage rate that is not artificially depressed by the importation of
temporary foreign labor. The 2013 SPWDs never fulfilled this purpose
because H-2B employers were not required to conduct additional
recruitment of U.S. workers at the SPWD rate. Ordering employers to pay
foreign H-2B workers a higher wage than they offered to U.S. workers in
recruitment is inconsistent with the central purpose of the mandatory
recruitment process. See Island Holdings at 14.
Second, the employer's obligation to pay, at minimum, the PWD wage
rate for the duration of the H-2B employment protects all similarly
employed U.S. workers from wage depression. The delay resulting from
the stay of more than 1,050 administrative appeals means that the SPWDs
at issue in those actions will never have this impact on the wages of
similarly employed workers. Had those SPWD wages been paid at the time
the work was performed, these H-2B employers' competitors might have
been pressured to raise wages in order to attract and retain workers.
But now, seven years after their issuance, these SPWDs cannot serve
this purpose.\17\
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\17\ Ordinarily, the protective purpose of PWDs is also
furthered by WHD's investigations and enforcement actions, including
for back wages for both U.S. and H-2B workers. Such investigations
and actions ensure H-2B employers comply with their obligations,
including those obligations designed to protect U.S. workers.
However, for the reasons set forth infra, enforcement of the 2013
SPWDs would be neither feasible nor prudent.
---------------------------------------------------------------------------
By and large, then, U.S workers whose wages may have been depressed
in 2013 would not benefit from now
[[Page 14710]]
affirming the 2013 SPWDs. By definition, H-2B employers' efforts to
recruit U.S. workers were at best only partially successful, meaning
that executing the Notice of Intent's plan would result in ordering
back wages predominantly to H-2B workers.\18\ Creating an obligation to
pay such back wages arguably protects those H-2B workers from
substandard wages, but that is not the primary purpose of prevailing
wages. The large disparity between the back wages that would be owed to
H-2B and U.S. workers places the 2013 SPWDs in tension with the
temporary labor certification program's predominant concerns of
protecting the domestic workforce from wage depression and from
preferential treatment of H-2B workers.
---------------------------------------------------------------------------
\18\ If employers did recruit any U.S. workers in conjunction
with their H-2B applications, the SPWD Notices required them to pay
those U.S. workers as well as the H-2B workers at least the SPWD
wage rate for the remainder of the certified employment.
---------------------------------------------------------------------------
3. CATA II Did Not Compel DOL To Issue the 2013 SPWDs
Despite earlier suggestions by the Department to the contrary, CATA
II did not require issuance of the 2013 SPWDs. Island Holdings at 14;
see, e.g., 79 FR at 75,182 (speculating that ``the CATA court
expected'' DOL to issue the SPWDs while acknowledging that CATA II
might not have ``required'' it to do so). Far from ordering adjustment
of PWDs already issued under the 2008 Methodology, the court spoke only
to the likelihood of its order disrupting determinations to be made in
the future. CATA II, 933 F. Supp. 2d at 715. Nor may such a directive
in CATA II properly be inferred.\19\ CATA II did not revisit the
court's previous rulings that (i) the court lacked power to order DOL
to issue SPWDs and (ii) use of the 2008 Methodology had been
permissible following CATA I.
---------------------------------------------------------------------------
\19\ DOL was not required to give CATA II retroactive effect by
issuing the 2013 SPWDs. The applicable case law does not set a
default requirement that agencies nullify actions undertaken
pursuant to a rule before that rule is vacated. Council Tree
Communc'ns, Inc. v. FCC, 619 F.3d 235, 257 (3d Cir. 2010) (declining
to nullify certain auction results). Further, CATA II did not
reinstate the status quo ante and instead necessitated promulgation
of a new rule. Using a new rule to adjust actions taken before the
rule issued is arguably in tension with the prohibition against
retroactive rulemaking absent congressional authorization. See Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).
---------------------------------------------------------------------------
B. Prudential and Programmatic Considerations Favor Accepting Island
Holdings
DOL has considered the effect that withdrawing the Notice of
Intent, and allowing Island Holdings to remain the ``the final
administrative decision of the Secretary,'' 29 CFR 18.58 (2012), will
have on workers, both H-2B and U.S. DOL has also considered reliance
interests and the impact that individually adjudicating the stayed SPWD
administrative appeals would have on time-sensitive programs, likely
for little practical benefit. These prudential and programmatic
concerns weigh in favor of withdrawing the Notice of Intent.
1. Individually Adjudicating the Employer Appeals Would Disrupt
Administration of Labor Certification Programs for Little Practical
Benefit
Overruling Island Holdings and leaving OFLC to individually
adjudicate each of the roughly 1,050 pending SPWD administrative
appeals relating to the 2013 employment season would drain significant
DOL resources.\20\ This would substantially detract from the pursuit of
other priorities and, in the end, would likely prove futile given that
the passage of time has diminished employers' ability to comply with
the 2013 SPWDs and WHD's preparedness to enforce them.
---------------------------------------------------------------------------
\20\ Even if the Secretary issued a declaratory order overruling
Island Holdings and setting the policy for OFLC to apply to various
arguments raised by employers challenging the 2013 SPWDs, OFLC would
have to review each case file to determine which arguments a given
employer raised and then draft an individualized opinion
accordingly. Moreover, OFLC would have to address any arguments
that, even if the 2013 SPWDs were valid, particular SPWDs were
improperly calculated under the IFR's methodology. Application of
Island Holdings avoids such individualized review and adjudication
because its conclusion that the 2013 SPWDs were invalid may be
uniformly applied to all the remaining requests for review of 2013
SPWDs.
---------------------------------------------------------------------------
ETA estimates that notifying the employers, reviewing the case
files, issuing Center Director opinions, processing BALCA requests, and
taking BALCA-directed action could collectively take over two-and-a-
half years to complete.\21\ This work would impact OFLC's usual case-
processing tasks, including in time-sensitive programs. ETA's normal
business lines would see an increase in processing times and backlogs,
including during high-filing periods. For example, it currently takes
on average 110 days to process prevailing wage determinations in the
CW-1 and PERM programs, but that could increase to approximately 150
days if, without acquiring new resources, ETA were tasked with
individually adjudicating the SPWD administrative appeals.\22\
---------------------------------------------------------------------------
\21\ Specifically, ETA estimates that this work could occupy 706
workdays and would require the use of four senior analysts, roughly
half-time each. Such analysts have experience in, and are typically
tasked with, making prevailing wage determinations for the H-2B, CW-
1, PERM, and H-1B programs.
\22\ Processing times for H-2B prevailing wage requests, which
are currently 30 days on average, would not be impacted due to
regulatory requirements.
---------------------------------------------------------------------------
Even if the Department were to expend these considerable resources
on the 2013 case files, there would likely be little practical benefit
to doing so, given the significant obstacles that now exist to
compliance and enforcement. There would be several hurdles to an
employer's ability to now comply with the 2013 SPWDs by issuing back
wages: The passage of time since the work at issue was performed; the
fact that the regulations in place in 2013 had no requirement that
employers retain the relevant employment records and therefore records
are likely to have been lost or destroyed; and the difficulty of
locating the relevant workers--most of whom, by definition, reside
outside the United States and came here to work here temporarily. Were
DOL, at this late date, to finalize the SPWDs at issue in the stayed
administrative appeals, these and other factors would also present
substantial barriers to enforcement. To be actionable, H-2B violations
must be willful. 8 U.S.C. 1184(c)(14)(D) (prohibiting a ``willful
failure to comply with the requirements of [the H-2B provisions] that
constitutes a significant deviation from the terms and conditions of a
petition''). It is questionable whether an employer's decision to
adhere to an initial PWD, rather than to an SPWD judged unlawful in a
``final'' decision of the Department, could properly be deemed
``willful.'' Regardless, the practical obstacles to compliance
described above would also pose serious challenges to proving the
willfulness of any subsequent non-compliance. Indeed, the challenges
presented by lost records, faded memories, and hard-to-locate workers
are precisely the type of staleness concerns that underlie WHD's
general policy of limiting its investigations to violations alleged to
have taken place within the last two years. WHD Field Operations
Handbook 76c03(a).
In short, the Department has strong programmatic reasons to accept
the ``final'' decision in Island Holdings, rather than expending
thousands of work hours, in derogation of other responsibilities, to
issue decisions that would be difficult ever to obey or enforce.
[[Page 14711]]
2. Prudential Considerations Do Not Warrant Issuing the Proposed
Declaratory Order or Continuing To Contest Island Holdings
The H-2B workers and U.S. workers recruited in connection with the
appealing employers' H-2B applications understood their work would be
temporary, and they accepted and performed the work at the offered
wage. Although the 2013 SPWDs may have given them an initial expectancy
of increased wages or back pay, those SPWDs subject to administrative
appeals were properly challenged and never became final because the
stay of the appeals prevented completion of administrative review.
Island Holdings--a ``final decision'' of the Secretary--held the SPWDs
were ultra vires, and no court has ever invalidated that holding. The
Notice of Intent proposed overruling Island Holdings, but the Notice
never progressed beyond a mere proposal. Five years have passed, and
DOL never issued a final declaratory order overturning Island Holdings.
In these circumstances, reliance on those SPWDs would not have been
reasonable.
On the other hand, many parties relied on the original PWDs before
recruitment and hiring. Prior to 2013, DOL had never issued SPWDs, at
least not on a large scale to all H-2B employers with then-extant TLCs.
Nor did the text of DOL's regulations provide notice of the potential
for SPWDs, much less specify the potential increase to wages. Further,
the 2013 SPWDs were issued not only to employers who had yet to hire H-
2B workers, but also to employers already employing H-2B workers. Such
employers had already paid the costs of recruiting workers, and would
have had limited options for responding to the SPWDs' increased costs:
H-2B workers, once employed, must be employed full-time; the employer
must pay return transportation for H-2B workers dismissed earlier than
scheduled; and the employer cannot lay off similarly employed U.S.
workers. 20 CFR 655.22(h), (i), (m) (2012). And, while employers might
have inferred from their Form 9142s that it was possible DOL would
issue SPWDs, there was no notice that this would in fact occur, let
alone notice of the amount or timing of the SPWD, or the methodology
that DOL would use.
V. Conclusion
For all the foregoing reasons, the Notice of Intent is withdrawn.
Signed: at Washington, DC this 9th of March 2020.
Eugene Scalia,
Secretary of Labor.
[FR Doc. 2020-05205 Filed 3-12-20; 8:45 am]
BILLING CODE 4510-HL-P
