The H-2B visa program allows employers to hire foreign workers to perform non-agricultural labor when there are not enough qualified and available U.S. workers to fill open jobs. In order to do so, employers must agree to pay these workers the “prevailing wage.” In 2013, a federal court and the U.S. Department of Labor (DOL) both concluded that the “prevailing wages” DOL was allowing employers to pay H-2B workers was too low. DOL calculated new prevailing wages and ordered employers to pay these higher wages. Many employers appealed these “supplemental prevailing wage determinations” (SPWDs). In 2014, the Secretary of Labor stayed all pending action with respect to the SPWDs and stated he would issue an order resolving all the pending appeals. Five years later, the Secretary still had not issued an order, and the stay remained in effect.
In June 2019, on behalf of five H-2B workers who should have been paid higher wage rates under the SPWDs and have been waiting since 2013 to be paid, Public Citizen and the Centro de los Derechos del Migrante filed a lawsuit under the Administrative Procedure Act against DOL. The complaint, filed in the U.S. District Court for the District of Columbia, alleges that the ongoing stay and failure to finally resolve the administrative appeals constitutes an unreasonable delay, and an arbitrary and capricious action.
In March 2020, while briefing on DOL’s motion to dismiss and the plaintiffs’ motion for summary judgment was ongoing, DOL issued a notice indicating that the Secretary would direct that the employers’ appeals be sustained, relieving them of their obligation to pay the higher wages owed. The court then denied the pending motions without prejudice.
We moved for leave to file an amended and supplemental complaint to add claims that the Secretary’s about-face was arbitrary and capricious and contrary to law, and that DOL’s continued refusal to issue final orders implementing the higher wages was unlawful. In March 2021, the court granted that motion. The case will now proceed with respect to DOL’s March 2020 action.