The DOL has postponed for two months enforcement of a new wage rate standard for H-2B guestworkers.[1] The postponement was in response to a barrage of legal challenges from small businesses that rely on guestworkers to meet seasonal demands. The new standard will require employers pay guestworkers a “wage that meets or exceeds the highest of the following: the prevailing wage, the federal minimum wage, the state minimum wage or the local minimum wage.” The catch is this. The “prevailing wage” is then defined as the highest of three measures; a wage rate established under Davis-Bacon; the mean (not average) wage for the occupation in the area; or wages established by a union contract. Put simply, the cost of guestworker labor would be set by any isolated union contract in the area. Employers and industry groups have filed multiple suits challenging the measure claiming it “imposes immediate retroactive, substantive, and burdensome changes to the current wage obligations” on businesses that rely on guestworkers. One more update from the DOL and if you aren’t already, be very afraid. In an effort that will surely build the economy and aid in job creation, Hilda Solis has signed a pact with the IRS to share information in a new coordinated effort to further torment employers who dare to engage independent contractors.[2] “Misclassifying employees can result in workers being denied the minimum wage, overtime pay, unemployment insurance, and workers’ compensation benefits.” Secretary Solis said. “This makes it harder for low-wage workers to put food on the table and provide for their families. It means a greater chance of working in unsafe conditions and not being compensated when hurt on the job.” Solis failed to mention the most loathsome trait of independent contractors – they are nearly impossible to organize. Organizing independent contractors (and of course curtailing their use) has been high on the Big Labor to-do list for years.[3] But according to IRS Commissioner Doug Shulman, this DOL/IRS marriage made in hell is only about better serving “the needs of small businesses and employees.” Really? So small business people and independent contractors, misclassified or not, have been clamoring for the IRS to look further into their finances? And finally, up on The Hill, Rep. Dennis Rehberg(R-MT) has introduced HR 3070,[4] a 150-page letter to Santa for all Human Resource professionals and other champions of free enterprise. The bill (which has a snowball’s chance of Senate passage) would deny funding to the NLRB or DOL for any of the following activities:
- Electronic voting as a first step towards off-site voting
- Expedited elections
- Enforcement of new notice posting rule
- Bargaining unit determinations that undercuts Wheeling Island Gaming
- Rolling back of Dana rights
- Implementing or regulating PLAs
- Changes to persuader reporting regulations
At this time it’s uncertain which if any of the bill’s provisions can be wedged into the final appropriations bill.
