Williams v. Walsh
| Decision Date | 18 July 2022 |
| Docket Number | Civil Action 21-1150 (RC) |
| Parties | MARY JANE WILLIAMS, et al., Plaintiffs, v. MARTIN J. WALSH, et al., Defendant. |
| Court | U.S. District Court — District of Columbia |
In this challenge to regulations and administrative actions governing the minimum wage an employer must offer in order to employ temporary foreign workers under the H-2B visa program, the Court grants Plaintiffs' motion for reconsideration of its previous order dismissing certain counts for lack of standing, because that order was premised on an incomplete picture of the governing regulatory regime. But the Court denies Plaintiffs' second request for a preliminary injunction because Plaintiffs have not shown that they would suffer irreparable harm in the absence of an injunction.
Because it remains largely (though not entirely) unchanged, the Court repeats much of the background discussion from its initial opinion in this case, adding updates where necessary. Mem. Op. Granting Pls.' Mot. Leave to File a Suppl. Compl., Granting in Part and Denying in Part Defs.' Mot. Dismiss, and Denying Pls.' Mot. Prelim. Inj., ECF No. 38, at 2-8 (“ ”).
Under the H-2B visa program, if a United States employer cannot find enough United States workers to perform temporary non-agricultural unskilled work, it may obtain visas for the admission of foreign workers to fill the gap. When Congress authorized this program, it was mindful of the risk that unfettered admission of foreign workers willing to work at lower rates might harm United States workers by depressing wages in their fields. Therefore, Congress required employers seeking H-2B visas to show that their employment of foreign workers will not adversely affect the wages and working conditions of United States workers. Comite De Apoyo A Los Trabajadores Agricolas v. Perez, 774 F.3d 173, 177 (3d Cir. 2014) (“CATA III”) (citing 8 U.S.C. §§ 1101(a)(15)(H)(ii), 1182(a)(5)(A)(i)(I)-(II)); see also Compl. ¶ 24.
By delegation from the Department of Homeland Security (“DHS”), the Department of Labor (“DOL”) holds responsibility for evaluating employer applications for H-2B visas in order to determine whether granting the requested employment of foreign workers will adversely affect United States workers. Compl. ¶ 25. This involves making two determinations: “(1) [that] qualified workers are not available in the United States to perform the employment for which foreign workers are sought, and (2) [that the foreign workers'] employment will not adversely affect wages and working conditions of similarly employed United States workers.” CATA III, 774 F.3d at 177 (citing 8 C.F.R. § 214.2(h)(6)(iii)(A), (iv)(A)). The wage an H-2B employer offers is central to this determination, both because the availability of United States workers will depend on whether the work pays a satisfactory wage and because admitting foreign workers willing to work for reduced wages may decrease the wages available to United States workers looking to work in the same industry. Thus, to be eligible to participate in the H-2B program, an employer must obtain from DOL a determination that the employer offers at least the “prevailing wage” for the relevant occupation. Compl. ¶ 26 (citing 20 C.F.R.§ 655.0(a)(2); id. § 655.10(a)).
Just how to calculate the prevailing wage for a particular occupation has been the subject of dispute between employers and workers for some time, and Congress, DOL, DHS, and the courts have all weighed in over the years. At first, DOL enlisted state agencies to calculate a prevailing wage for each occupation within their jurisdictions. CATA III, 774 F.3d at 178. In 2005, for occupations not subject to any collective bargaining agreement, DOL began to consider both employer-submitted, private wage surveys and the Bureau of Labor Statistics Occupational Employment Statistics (“OES”)[1] survey. Id. According to Plaintiffs, surveys submitted by employers tend to suffer from methodological defects not present in the OES survey, including defining the relevant occupation too narrowly by using specific job duties as the determinative criterion and failing to ensure that all relevant employers have submitted wage data. Compl. ¶¶ 67-78. Therefore, the Plaintiffs allege that employer-submitted surveys indicate that the prevailing wage is lower than it is under the preferable OES method, and that DOL's consideration of employer-submitted wage surveys systematically depresses wages in H-2B industries. Id. ¶¶ 85-89.
A 2008 rule formalized DOL's practice of making prevailing wage determinations based either on employer-submitted surveys or the OES wage. See Compl. ¶ 33 (citing 73 Fed.Reg. 78020, 78056 (Dec. 19, 2008)). Though the notice of proposed rulemaking solicited comments generally, it did not permit comments on the specific topic of acceptance of employer-submitted surveys. See id. ¶ 29. A district court held that a separate feature of the 2008 rule-its division of OES data to identify OES wages for different “skill levels”-was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”). Comite de Apoyo a los Trabajadores Agricolas v. Solis, No. 09-240, 2010 WL 3431761, at *19 (E.D. Pa. Aug. 30, 2010) (“CATA I”). DOL responded with a notice of proposed rulemaking, and ultimately a final rule in 2011 that, among other things, forbade employers from submitting their own surveys when an applicable OES wage (or another approved federal wage measure) was available. Compl. ¶ 37 (citing 76 Fed.Reg. 3452, 3465 (Jan. 19, 2011)). DOL explained that the OES survey was “the most consistent, efficient, and accurate means of determining the prevailing wage rate for the H-2B program.” Id. ¶ 2 (citing 76 Fed.Reg. at 3465). But Congress refused to provide appropriations to implement this rule, so DOL continued to operate under the 2008 rule, including by differentiating among skill levels and by accepting employer-provided surveys. Id. ¶ 41. Yet again, the Eastern District of Pennsylvania ordered DOL to cease its skill-level differentiation. Comite de Apoyo a los Trabajadores Agricolas v. Solis, 933 F.Supp.2d 700, 711-12 (E.D. Pa. 2013) (“CATA II”).
In response, and without notice and comment, DOL and DHS published a joint Interim Final Rule, which, among other things, officially returned to the policy of requiring DOL to accept employer-provided surveys. Compl. ¶ 2. At the same time it announced this 2013 rule, DOL and DHS solicited post-rule public comments on “the accuracy and reliability of private surveys,” including “state-developed” surveys. Id. ¶ 48 (quoting 78 Fed.Reg. 24047, 24055 (Apr. 24, 2013)). But this rule, too, was quickly vacated; the Third Circuit concluded that DOL and DHS had not sufficiently explained their policy of approving employer survey submissions and held, based on the then-existing record, that the policy was arbitrary and capricious in violation of the APA. CATA III, 774 F.3d at 186-91. The Third Circuit ordered “that private surveys no longer be used in determining the mean rate of wage for occupations except where an otherwise applicable OES survey does not provide any data for an occupation in a specific geographical location, or where the OES survey does not accurately represent the relevant job classification.” Id. at 191.
Again without notice and comment, DOL and DHS jointly published a new rule in 2015 at 80 Fed.Reg. 24146 (April 29, 2015) (codified at 20 C.F.R. Part 655) (the “2015 Wage Rule”). See Compl. ¶ 56. The agencies purported to be finalizing the 2013 interim final rule (even though it had been vacated); because that rule solicited (and the agencies had received) comments on the appropriate methodological requirements for and propriety of using employer-submitted surveys, the agencies concluded that further notice and comment was not necessary. See 80 Fed.Reg. at 24151, 24153 n.17. The 2015 Rule requires DOL to accept prevailing wage surveys from employers who wish to participate in the H-2B program, so long as the survey “was independently conducted and issued by a state, including any state agency, state college, or state university.” 20 C.F.R. § 655.10(f)(1); 80 Fed.Reg. at 24184; see also Compl. ¶ 58. DHS and DOL explained that they had “determined that it is appropriate to permit prevailing wage surveys that are conducted and issued by a state as a third, limited category of acceptable employer-provided surveys, even where the occupation is sufficiently represented in the OES.” Compl. ¶ 59 (quoting 80 Fed.Reg. at 24169-70).
When it submits such a survey to DOL as part of its application package, an employer must include “specific information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow a determination of the adequacy of the data provided and validity of the statistical methodology used in conducting the survey.” 20 C.F.R. § 655.10(f)(4). The employer must also attest via Form ETA-9165 that the survey was conducted by a third party (not an employer or its agents) that the surveyor either contacted a randomized sample of relevant employers or attempted to contact them all, and, among other things, that the “survey includes wage data from at least 30 workers and three employers.” Id. § 655.10(f)(4) (i)-(iii). An employer-submitted survey “must be the most current edition of the survey and must be based on wages paid not more than 24 months before the date the survey is submitted for...
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