The U.S. Court of Appeals for the Third Circuit ruled yesterday that the Department of Labor’s H-2B visa wage methodology regulation is valid, handing a defeat to a coalition of employers who want to keep wages low for employees in forestry, seafood, hospitality, landscaping and other physically demanding jobs. In Louisiana Forestry Association v. Secretary, U.S. Department of Labor, the court held that the Immigration and Nationality Act gives the Department of Homeland Security the authority to rely on the Labor Department’s decisions about whether U.S. workers are available for jobs that employers want to offer to foreign workers, and whether U.S. workers will be adversely affected if foreign workers are admitted to the U.S. to do particular jobs.
The Labor Department issued a regulation in 2011 that sets out the most important element for making that determination: setting a prevailing wage rate for each occupation and requiring businesses to advertise jobs to workers in the United States at that rate before hiring foreign workers. The court held that the regulation is valid and rejected the businesses’ argument that the Department of Labor cannot set wages at a level high enough to attract U.S. workers.
I am not making this up. The Louisiana Forestry Association, the Crawfish Processors Alliance, and the American Hotel and Lodging Association actually argued that the required wages should not be set high enough to attract U.S. workers and that the Labor Department is not allowed to protect U.S. workers’ rights to a decent wage. Fortunately, the three-judge panel unanimously rejected this cynical argument and found that setting wages below the local prevailing wage does “adversely affect the wages and working conditions of similarly employed United States workers”:
We likewise reject Appellants’ argument that the DOL improperly established wage rates in order to attract U.S. workers—a factor Appellants claim the DOL was prohibited from considering in promulgating the 2011 Wage Rule. According to Appellants, in the NPRM and notice accompanying the final rule, the DOL “discussed the effect of higher wage rates on employers’ ability to attract U.S. workers,” a “factor that Congress and the [DHS] precluded from consideration…” We cannot agree. The INA and DHS regulatory provisions governing the DOL’s issuance of labor certifications require the DOL to consider, in issuing a temporary labor certification, whether H-2B alien workers’ employment “will adversely affect the wages and working conditions of similarly employed United States workers,” 8 C.F.R. 214.2(h)(6)(iii), a requirement that derives from the DHS’s charge from Congress to consider whether H-2B workers will have an “adverse effect” on U.S. workers.
This litigation is only one step in a five year long legal odyssey that began when the Comité de Apoyo a los Trabajadores Agricolas and the Pineros y Campesinos Unidos del Noroeste (two farmworker groups), represented by Friends of Farmworkers, the Southern Poverty Law Center and the Centro de los Derechos del Migrante (Center on Migrant Rights), sued the Labor Department, which during the Bush administration set H-2B wage rates that were so low they discouraged U.S. workers from applying for or taking tens of thousands of jobs each year. The wages were systematically set about 25 percent lower than the true prevailing wage, as EPI pointed out in op-eds, congressional testimony, and rulemaking comments. Eventually, the Obama administration’s Labor Department issued a new rule and for the past five years has steadfastly supported the rights of both U.S. and foreign workers to decent jobs at fair wages. Former Secretary Hilda Solis, former Deputy Secretary Seth Harris, and Secretary Tom Perez have not wavered in the face of legal and political attacks engineered by employers intent on driving wages ever lower.
This fight is not over, either in the courts or in Congress, but I salute the attorneys who won this battle—Art Read, Ed Tuddenham, Sarah Rempel, Elizabeth Mauldin, Meredith Stewart, Greg Schell, Michael Dale, and Corinna Spencer-Scheurich—as well as the government’s lawyers, Harry Sheinfeld and Geoffrey Forney. Their tenacity and skill have won a rare victory for workers and their families.