Comite De Apoyo a Los Trabajadores Agricolas v. Solis
| Decision Date | 21 March 2013 |
| Docket Number | Civil Action No. 09–240. |
| Citation | 933 F.Supp.2d 700 |
| Parties | COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS, et al. v. Hilda SOLIS, in her official capacity as United States Secretary of Labor, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
OPINION TEXT STARTS HERE
Held Invalid
20 C.F.R. § 655.10(b)(2)Arthur N. Read, Liz Maria Chacko, Friends of Farmworkers, Inc., Philadelphia, PA, Clermont L. Fraser, The North Carolina Justice Center, Raleigh, NC, Mary C. Bauer, Southern Poverty Law Center, Montgomery, AL, Meredith B. Stewart, Southern Poverty Law Center, New Orleans, LA, Michelle R. Lapointe, Southern Poverty Law Ctr, Atlanta, GA, D. Michael Dale, Northwest Workers' Justice Project, Portland, OR, Edward Tuddenham, Law Office of Edward Tuddenham, New York, NY, for Comite De Apoyo a Los Trabajadores Agricolas, et al.
Jessica W.P. D'Arrigo, U.S. Dept of Justice, Washington, DC, for Defendants.
Plaintiffs Comité de Apoyo a los Trabajadores Agrícolas (“CATA”), Pineros y Campesinos Unidos del Noroeste (“PCUN”), Alliance of Forest Workers and Harvesters (“the Alliance”), and Salvador Martinez Barrera challenge federal regulations promulgated by Defendant agency, the Department of Labor. The case is now before the Court on Plaintiff's Motion for Permanent Injunctive Relief. (Doc. No. 152).
The H–2B visa program—named for the statutory section under which it was created 1—allows United States employers to bring foreign workers (“H–2B workers”) to the United States to perform temporary, unskilled, non-agricultural work. The H–2B program is distinct from the H–1B worker program, which permits aliens to temporarily enter the United States to perform skilled, “specialty occupations,” and from the H–2A program, which permits aliens to temporarily enter the United States to perform unskilled, agricultural labor.
The H–2B program is the result of significant political compromise. The program seeks to balance certain industries' temporary need for unskilled foreign workers against a policy interest in protecting United States workers' jobs, salaries, and working conditions. In furtherance of these dual considerations, the Immigration and Nationality Act (INA) permits the issuance of H–2B visas, only where inter alia: (1) unemployed persons capable of performing such services cannot be found in this country; and (2) the employment of such aliens will not adversely affect the wages and working conditions of United States workers. 8 U.S.C. § 1101(a)(15)(H)(ii)(b); 8 U.S.C. § 1182(a)(5)(A)(i)(I)-(II).
The H–2B program is administered by the Department of Homeland Security (DHS) in conjunction with the Department of Labor (DOL).
The INA confers broad authority upon the DHS to admit aliens to this country and to promulgate regulations regarding the issuance of nonimmigrant visas. 2 The statute further provides that: “[t]he question of importing any alien as a nonimmigrant ... in any specific case or specific cases shall be determined by [the DHS], after consultation with appropriate agencies of the Government.” 8 U.S.C. § 1184(c)(1).
In accordance with the INA, DHS regulations require that the Secretary of Labor determine and certify to the DHS that H–2B applications comport with the INA's requirements. Accordingly, prior to filing an H–2B petition with the DHS, an employer must first apply for and receive a temporary labor certification from the Secretary of Labor. 8 C.F.R. § 214.2(h)(6)(iii) (2011). Such certification constitutes the DOL's “advice” that the DHS should grant the requested H–2B visa and the certification must confirm that: (1) qualified workers in the United States are not available to perform the position sought; and (2) the alien's employment will not adversely affect wages and working conditions of similarly employed United States workers. 8 C.F.R. § 214.2(h)(6)(iii)(A), (iv)(A). DHS regulations instruct that the DOL shall “establish procedures” for administering labor certifications within these confines. 8 C.F.R. § 214.2(h)(6)(iii)(D).
In order to issue a labor certification, the DOL must determine as a threshold matter, that qualified United States workers are not available to fill the position for which an employer seeks foreign workers. As the availability of United States workers is, for obvious reasons, largely determined by the wages that an employer offers, the DOL may only issue labor certifications where United States workers are unavailable to fill a given position at the occupation's “prevailing wage.” Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H–2B Workers), and Other Technical Changes, 73 Fed. Reg. 78020–01, 78056 (as codified at 20 C.F.R. § 655.10(b)(2)) (Dec. 19, 2008). Accordingly, to apply for a labor certification, an employer must first obtain from the DOL a prevailing wage determination for the area of intended employment, submit a work order with a state workforce agency serving the geographical area of intended employment, and advertise the position at a wage equal to or higher than the prevailing wage, as established by the DOL. Id. at 78022–23.
The DOL's calculation of prevailing wages is of central importance to the H–2B program's success. Nonetheless, over the past three decades, the DOL has periodically changed its method for calculating prevailing wages, without notice and comment, and often without explanation.
From about 1986 until 2008,3 the DOL issued a series of guidance letters governing the calculation of H–2B prevailing wages. The DOL's initial guidance letters charged state workforce agencies with making prevailing wage determinations for H–2B occupations, and provided that, in the absence of a collective bargaining agreement, state agencies should use the methodologies set forth in the Davis–Bacon Act (“DBA”),4 and the McNamara–O'Hara Service Contract Act (“SCA”),5 to determine prevailing wages.6 Under this system, state workforce agencies calculated a single prevailing wage for any given occupation in the area of intended employment.
In the mid–1990s, the DOL altered its wage methodology to create multiple prevailing wages for each H–2B occupation. The DOL initially divided each H–2B occupation into two skill levels—“entry level” (“Level I”) or “experienced level” (“Level II”)—and calculated a prevailing wage for each level.7 In 2005, the DOL further divided unskilled, H–2B occupations into four skill and wage levels,8 borrowing from a system that Congress created to calculate prevailing wages for the H–1B program's skilled, “specialty occupations.” 9 Both of these changes were achieved through DOL guidance letters and were not subject to notice and comment rulemaking.
On December 19, 2008, the DOL first promulgated regulations to govern H–2B labor certification.10 The 2008 regulations alter H–2B certification in a number of significant ways. Importantly, the DOL adopted the “2008 Wage Rule” which states: “the prevailing wage for labor certification purposes shall be the arithmetic mean ... of the wages of workers similarly employed at the skill level in the area of intended employment.” 11
It is undisputed that, in applying the 2008 Wage Rule's phrase “at the skill level,” the DOL uses the four-tier methodology that Congress created for the H–1 B program and which the DOL adopted without notice and comment in 2005. That is, under the 2008 Prevailing Wage Rule, the DOL divides each unskilled, H–2B occupation into four separate skill levels and calculates a prevailing wage for each level. With this rule in place, the DOL grants labor certifications for H–2B workers, so long as “qualified” United States workers are not available at the “prevailing wage,” in the area of intended employment and at the particular skill level sought. The vast majority of employers who apply for H–2B labor certifications seek workers at an occupation's lowest skill and wage level.12
Plaintiffs initiated the instant litigation in 2009, challenging various aspects of the DOL's 2008 regulations as improperly promulgated under the Administrative Procedure Act (APA).13 Among those provisions that Plaintiffs challenged was the 2008 Wage Rule.
On August 30, 2010, Honorable Louis H. Pollak of the Eastern District of Pennsylvania held that the DOL improperly promulgated the 2008 Wage Rule's “at the skill level” language. Comite De Apoyo A Los Trabajadores Agricolas v. Solis, No. 09–240, 2010 WL 3431761 (E.D.Pa. Aug. 30, 2010). Judge Pollak reasoned:
In the absence of any valid regulatory language authorizing the use of skill levels in determining the prevailing wage rate [ ] the four-tier structure of skill levels set out in the guidance letters—which is entirely untethered from any other statutory or regulatory provisions, and which affirmatively creates the wages paid to H–2B workers—constitutes a legislative rule which must be subjected to notice and comment. It has not been so subjected and it [ ] is therefore invalid.
Id. at *19. In invalidating the words “at the skill level,” the Court stressed that the “DOL has never explained its reasoning for using skill levels as part of H–2B prevailing wage determinations” and that the system has never been subject to notice and comment, as the APA requires. Id. at *19, *25.
Judge Pollak further found that the DOL's errors in promulgating the 2008 Wage Rule were “serious” and of a magnitude that counseled in favor of vacating the Regulation. Id. at *25 (...
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