7/7/2011 1:07 PM
John,
It was a pleasure speaking with you yesterday about the upcoming changes to the H-2B visa program, which will most certainly make it more costly and difficult for golf facilities to use the program. Below is a summary of our conversation which might be helpful for other users of the program.
DOL has issued two separate rulemakings since last fall, both of which address wages paid to H-2B workers and U.S. workers.
The first proposal, which was formally adopted in January, will require employers to offer H-2B workers and U.S. workers hired in response to the recruitment required as part of the H-2B application process a wage that is at least equal to the highest of the prevailing wage or the Federal, State or local minimum wage. The prevailing wage will be either: a wage rate set forth in a collective bargaining agreement (if applicable); a wage rate established under the Davis-Bacon Act or the McNamara-O'Hara Service Contract Act; or the arithmetic mean of the OES-reported wage. With this change in wage calculation regime, DOL reports an average increase (taking into account all occupations) of $4.38 per hour per worker.
That being said, the true costs will probably be more dramatic because the calculation does not include labor increases for more experienced U.S. workers whose pay should reflect the greater skill or experience level and be proportional to the hourly wage earned by lesser skilled workers.
The rule was supposed to go into effect starting January 1, 2012, but as of last week, DOL is proposing a new start date of October 1, 2011.
DOL issued a second rule in March which attempts to revamp the entire H-2B program; it is expected to be final very soon. This rule would require that workers in "corresponding employment" be paid the same wages as paid to foreign workers under the H-2B program. This would cast a wider net in terms of potential wage increases. According to an H-2B processor in the Northeast, employers would effectively be prohibited from paying less than the prevailing wage to anyone who has even tangential involvement with jobs described in the labor certification job order. Conversely, if the employer has tangentially employed workers who are paid more than the prevailing wage, all the H-2B workforce (H-2B and US) would have to be paid the higher rate. Employers would have to carefully evaluate possible effects of paying higher wages to tenured or exceptionally capable workers in any corresponding or tangentially related employment.
Hope this information is helpful.
Chava McKeel
GCSAA Senior Manager, Information and Public Policy