Higher Wage Rate, Averaging $4.38 per Hour More, Will Open Jobs for U.S. Workers

In response to the order of a federal court in Philadelphia holding that the Bush Department of Labor illegally implemented a change in how much employers must offer U.S. workers when proposing to import temporary foreign workers for jobs in the U.S., the Secretary of Labor has proposed rules that would largely return to the prior system for calculating the required wage levels.

At the end of August, the Department was ordered to revise how it calculates the "prevailing wage" that must first be offered to workers in the United States in order to obtain temporary workers from other countries under the H-2B program.

Under the program, employers can only import foreign workers if they can't recruit U.S. workers for the jobs under prevailing conditions of employment, including the "prevailing wage" set by the Department of Labor.

This action will likely mean that thousands of jobs will be available to U.S. workers at wage rates that the Department calculates will average $4.38 per hour higher than would have been offered under the invalidated rule.

"This means a citizen or other worker with legal residency in the U.S. will be more willing to take these jobs," said Nelson Carrasquillo, president of Comité de Apoyo a los Trabajadores Agrícolas (CATA), 31‐year‐old workers' association that claims 4,000 members in Pennsylvania and New Jersey.

Under the court's order, the Secretary has until December 28, 2010, to revise its prevailing wage methodology. The Department of Labor estimates that the wage increase would result in about $769.4 million of additional wages in the hands of employees.

In CATA et al v. Solis, filed in the United States District Court for the Eastern District of Pennsylvania, advocates for low wage workers challenged H-2B regulation changes published by the outgoing Bush administration in its final days.

On August 30, 2010, the court ruled that many of the challenged regulations were illegally adopted. Judge Louis H. Pollak found that the system that had been used by the Bush Department of Labor since 2005 for calculating prevailing wages was adopted illegally and ordered the department to revise this regulation.

Local counsel Art Read from Friends of Farmworkers, noted, "Historically, the prevailing wage was the average wage that workers in the area in the same type of work were earning. The Bush system for calculating prevailing wage commonly results in a wage that is the average of the bottom third of wages paid to U.S. workers in the same job and area of the country. This has been causing U.S. workers to have to choose between losing out on the job or accepting lower wages. This has been depressing U.S. wage levels in jobs in which H-2B workers are used."

The proposed rule will be open for comment for thirty days. If the Department of Labor returns to the original system, prevailing wages would rise significantly. For example, wages for carpenter helpers in Philadelphia would rise from $11.87 to $16.30, for roofers in Atlanta from $10.97 to $14.42, and for janitors in Portland, Oregon, from $9.43 to $12.19.

"The H‐2B program should not be a tool to drive down wages, but that has sadly been the case for far too long," said Edward Tuddenham, an attorney who worked on the case. "These changes are an important step in protecting the rights of countless workers across the country."

The new proposed regulations are the result of a more than 5 year battle (and 21 month court case) by advocates in the Low Wage Workers’ Legal Network to overcome the usage of temporary "guest workers" as a low paid exploitable work force. Over the past 12 years the H-2B non‐agricultural temporary worker program expanded greatly with the active support of the Bush Administration Department of Labor. Wage rates had been deliberately set lower than prevailing market wage rates to encourage expansion of employer usage of the program.

The federal court also upheld other challenges to the Bush administration H-2B rules and found that the Bush regulations improperly excused employers that use a labor broker to recruit workers for them from responsibility for not displacing U.S. workers. Ramon Ramirez, President of PCUN (Oregon’s farm worker union, which also joined the lawsuit) said, "Too often, employers hide behind so‐called independent contractors to avoid accountability for the exploitation of their own workers."

Judge Pollak also ruled that the Bush definition of "full time" work that must be offered under the H‐2B program as being only 30 hours per week was improper, and required that prospective H‐2B employers recruit U.S. workers through unions representing the type of workers who were being sought. This is an important issue in many industries.

The H-2B program is rife with exploitation. The Southern Poverty Law Center documented widespread abuses in the H-2B program in its 2007 report, Close to Slavery. The report describes rampant wage violations, recruitment abuses, seizure of identity documents and squalid living conditions. H-2B workers, whose visas do not allow them to change jobs, typically have little recourse if they are exploited. The Department of Labor intends to propose further changes to the H-2B regulations by next month.

The court case was brought by CATA, a membership organization of low wage workers in New Jersey and Pennsylvania, PCUN, an Oregon union of farm and reforestation workers, the Alliance of Forest Workers and Harvesters, an advocacy organization in Northern California and the Pacific Northwest and an individual worker.

The lawsuit was filed by attorneys from member organizations of the Low Wage Workers Legal Network, including Friends of Farmworkers, Inc. in Philadelphia, the North Carolina Justice Center, the Northwest Workers’ Justice Project in Portland, Oregon, the Southern Poverty Law Center, Centro de Derechos del Migrante, in Zacatecas, Mexico, as well as Washington, D.C. attorney Edward Tuddenham.

According to Carl Wilmsen of the Alliance for Forest Workers and Harvesters, one of the organizations bringing the lawsuit, "Wages in reforestation have been falling in recent years. We are pleased that the administration has taken this step."

Wage Methodology for the Temporary Non-Agricultural Employment H–2B Program: Proposed Rule