A D.C. federal district court judge has dismissed the claims of Louisiana crawfish peelers who filed suit over a wage determination rule concerning the H-2B guest worker program. They claim that they have experienced decreases in their pay rates because the rule allows employers to submit their prevailing wage data instead of data from the U.S. Bureau of Labor Statistics (BLS).
However, the judge did permit the workers to file a supplemental complaint in the suit. The workers were given leave to challenge current wage determinations; At least three of the plaintiffs’ employers had received H-2B approvals with hourly pay rates below those provided by the BLS Occupational Employment Statistics program.
The judge also denied the workers’ request for a preliminary injunction. The proposed injunction would have required the Department of Labor (DOL) and the Department of Homeland Security (DHS) to post a warning on their websites warning employers of the litigation over the rule and their potential liability for back wages if the litigation were successful.
The H-2B guest workers program allows U.S. employers to hire temporary nonagricultural workers only if they pay them at the local market rate. The point of this regulation is to avoid the exploitation of foreign workers and safeguard domestic workers’ wages. To that end, employers must submit proof of the prevailing wage rate in their industries to DOL before receiving approval of their H-2B visa petitions.
In Williams et al. v. Walsh et al., case number 1:21-cv-01150, U.S. District Court for the District of Columbia, the crawfish peelers challenged the 2015 joint wage determination rule from DOL and DHS. Their challenge was based on a violation of the Administrative Procedure Act because there was no opportunity for public comments before it took effect.
The crawfish peelers further claimed that the joint wage determination rule has resulted in their employers paying them less. Since the employers can rely on different data to establish the prevailing wage, they can hire temporary foreign workers at hourly rates that are anywhere from $0.18 to $4.97 less than they would be required to pay using BLS’s Occupational Employment Statistics data.
According to the workers, one popular alternative source that employers use to justify their prevailing wage data is the Louisiana Crawfish Wage Study produced by the Louisiana State University Agricultural Center. However, the workers state that this study is flawed because it uses wage data from only four companies. The study also examines the wages of crawfish peelers separately from two other job classifications that the DOL attaches to the crawfish peeler job classification. Furthermore, the workers complain that there is no indication whether the study was conducted independently and without industry influence or whether the study used any statistically valid methodologies. Finally, the study does not state what percentage of the employees studied were H-2B workers or whether its data was “statistically representative of the narrowly defined ‘occupation’ of Louisiana crawfish processors.”
The judge found that the workers’ challenge to the joint wage determination rule would not redress their alleged injuries. Even if the court were to invalidate the joint wage determination rule, the judge reasoned, DOL still would be required to accept the alternative prevailing wage data from employers under a rider that Congress has attached to appropriations legislation every year since 2016. The workers did not challenge that statute in their lawsuit.
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