Federal appeals court ruling in SPLC case closes loophole, protects workers’ right to fair wages
A federal appeals court ruling today effectively closed a regulatory loophole that has depressed wages for foreign workers employed under the H-2B guest worker program as well as domestic workers in those industries.
A federal appeals court ruling today effectively closed a regulatory loophole that has depressed wages for foreign workers employed under the H-2B guest worker program as well as domestic workers in those industries.
The decision by the Third Circuit Court of Appeals removes a provision that allowed employers to use private “wage surveys” to determine the wage they must pay H-2B and domestic workers.
Growing numbers of employers have exploited the regulation by submitting surveys to the Department of Labor that showed the prevailing wage for work to be lower than the wages determined by the department’s reliable wage statistics database.
The court aptly noted that the loophole “is adversely affecting United States workers by forcing them to accept depressed wages or face being replaced by foreign H-2B workers.” In other words, today’s ruling will have a positive effect on the wages of thousands of H-2B guest workers and domestic workers in industries such as seafood and landscaping.
The events leading up to this decision can be traced back to 2008 when the Department of Labor issued regulations in the waning days of the Bush administration that threatened worker protections. These regulations included a provision that made it easier to replace U.S. workers with cheap and exploitable foreign labor.
A Pennsylvania federal court invalidated the wage rule the following year in a lawsuit (CATA v. Solis) filed by the SPLC and other workers’ rights organizations. The court ordered the department to replace the rule. In 2013, the department issued a new rule to ensure employers pay a wage that does not adversely affect the pay of U.S. workers. The new rule, however, still permitted employers to obtain a wage rate through private wage surveys.
The SPLC and workers’ rights organizations filed another lawsuit (CATA v. Perez) on behalf of several farmworker organizations and Mexican guest workers. The federal court in Pennsylvania dismissed the workers’ case, claiming it was not ripe because the department intended to issue a new rule at some point in the future. Today’s appeals court overturned the lower court’s decision and handed a true victory for all workers.
