H-2B Wage Rule: DOL, Congress, Coalition Maneuver

By: Neil Ward

In the course of a major court-ordered reform of the H-2B guestworker visa program, rulemakings from the U.S. Department of Labor have brought it into conflict with contractors who depend on these guestworkers to accomplish tasks that have failed to attract U.S. workers. Among the sectors affected is reforestation, which has traditionally depended on handplanting workers from Mexico and Central America. As we have reported previously, the current conflict with DOL is over a wage-setting formula that sets stipulated wage rates for most H-2B sectors, including reforestation, artificially and uncompetitively high.

The Joint H-2B Legal Challenge Alliance, in which FRA plays a leading role, challenged the Wage Rule itself and its early implementation in federal court; on September 23, the date the hearing was to be held, DOL announced a voluntary postponement of the rule until November 30. A second court date for an amended complaint was scheduled, and occurred, on November 2, at the Western District Federal Court of Louisiana. The Alliance’s team, including witnesses from the reforestation sector, participated, arguing both factual and procedural points, and—according to our post-hearing debriefing—came out of the session concluding that the judge had made appropriate note of the salient points, which included the intent of the original court-order and the DOL’s interpretation of it. The DOL’s attorneys appeared chiefly interested in getting the case remanded to the Philadelphia jurisdiction which was the source of that court order—a venue that DOL perceives to be more sympathetic to its agenda. As of press time, the judge had not ruled, although we anticipate a ruling before DOL’s November 30 date for implementing the Wage Rule.

In the meantime, we also engaged the issue through a legislative venue, although a bipartisan campaign led by Sen. Barbara Mikulski (D-Maryland) to defund DOL’s enforcement of the new Wage Rule through a provision in a Senate appropriations bill (the so-called “Mini-bus”—a miniature “omnibus” bill) was unable to achieve satisfactory consensus, either in scope (the proposal offered no relief to reforestation contractors and a few other sectors) or in time (the proposal limited itself to a six-month delay in implementation instead of offering a permanent solution). The Coalition, and particularly its reforestation cohort, raised strong objections within the House-Senate conference committee framework, and the language that reached the floor improved the scope (all H-2B sectors are included) but not the time-frame (the funding cut-off extends only six weeks, until January 1, 2012).

The Alliance’s next move will depend on two developments: first, the Louisiana Federal Court’s ruling, expected any day; and second, our assessment of the political will in congress to enact a satisfactory permanent solution. In spite of the failure of the “Mini-bus” to bring this issue to a conclusion, we have identified promising legislative alternatives and are pushing congress to enact one of them before the Wage Rule’s new January 1, 2012 start date.

Neil Ward is the Director of Communication for the Forest Resources Association that represents diverse segments of the wood fiber supply chain, promoting forest products industry members' ability to compete successfully in the global marketplace.