BALCA Finds That H-2B Employers Have No Obligation to Comply With a PWD Issued After Certification

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On December 3, 2013, the Board of Alien Labor Certification Appeals (BALCA) issued a decision, in the Matter of Island Holdings LLC, vacating supplemental prevailing wage determinations (PWDs) and increased wages imposed on an employer after approval of the Form 9142, Temporary Labor Certification. 

In Matter of Island Holdings LLC, the employer, a seasonal resort, had applied for and obtained Temporary Labor Certifications from the Department of Labor (DOL) to employ foreign workers as housekeepers, servers and cooks in H-2B status.  The DOL issued three “Supplemental Prevailing Wage Determinations” purporting to increase the wage rate the employer must pay the H-2B workers it hired pursuant to the Temporary Labor Certifications. 

In reaching a decision, BALCA found that DOL regulations do not require an employer to comply with a prevailing wage determination issued after the DOL has already approved and granted the employer’s Application for Temporary Employment Certification.