On December 5, the Third Circuit of the US Court of Appeals overruled the use of private wage surveys in the determination of wages for H-2B visa workers. In its decision, the court cited the negative effects of the use of these surveys on both employers and employees.
For employers who cannot afford the cost of commissioning a private survey, they must rely on the Occupational Employment Statistics survey from the Department of Labor's Bureau of Labor Statistics. For employees, both H-2B workers and US workers, the Court argued that the surveys created "depressed" wages and earnings when compared to the wages from DOL’s statistics.
Further, Judge Morton I. Greenberg argued in his decision that the DOL had violated the Administration Procedures Act by failing to "offer any rational justification for this policy as it leads to similarly situated workers in the same market in the same season bringing home widely disparate paychecks."
Due to ongoing litigation involving the DOL and H-2B visa program wages, H-2B visa wages are being calculated based on interim 2013 rules, with most employers obtaining a prevailing wage determination from DOL. Earlier this year, the DOL announced its plans to issue a new notice of proposed rulemaking specific to H-2B wages. These proposed rules were expected this month but have yet to be announced.