DOL OFLC, Prevailing Wage Surveys 2022 H-2A Final Rule 1.18.23

UNITED STATES DEPARTMENT OF LABOR

Temporary Labor Certification Program 2022 H-2A Final Rule Prevailing Wage Surveys January 18, 2023 Office of Foreign Labor Certification Employment and Training Administration UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Disclaimer This presentation is intended for training use only and does not carry the force of legal opinion. The Department of Labor is providing this information as a public service. This information and any related materials are presented to give the public access to information on the Department of Labor programs. You should be aware that, while we try to keep the information timely and accurate, there will often be a delay between official publications of the materials and the modification of these pages.

Therefore, we make no express or implied guarantees. The Federal Register and the Code of Federal Regulations remain the official source for regulatory information published by the Department of Labor. We will make every effort to keep this information current and to correct errors brought to our attention. 2 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR OFLC Presenters  Lindsey Baldwin Program Director for National Prevailing Wage Center (NPWC)  Cheryl Beasley Supervisor Immigration Program Analyst (NPWC)  Kisa Hyman Senior Immigration Program Analyst (NPWC)  Irene Kho Immigration Policy Analyst 3 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR 2022 H-2A Final Rule Overview for Prevailing Wage Survey  Regulatory Action  Prevailing Wage Surveys  Overview of Regulatory Changes  New Survey Methodology Criteria  Submission, Review, and Approval Process 4 For Government Training Use Only (January 2023) Regulatory Action UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Regulatory Action  In 2019, the Department published a Notice of Proposed Rulemaking proposing to comprehensively modernize and enhance the regulations governing the certification of temporary nonimmigrant agricultural employment and the enforcement of applicable obligations for employers of H-2A workers and workers in the United States similarly employed  On October 12, 2022, the Department published a Final Rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (“2022 H-2A Final Rule”) https://www.govinfo.gov/content/pkg/FR-2022-10-12/pdf/2022-20506.pdf  The 2022 H-2A Final Rule addresses aspects of the H-2A program except for the Adverse Effect Wage Rate (“AEWR”) methodology  The Department is addressing proposals for the AEWR methodology in a separate regulatory action 6 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR 2022 H-2A Final Rule Overview  Strengthens protections for agricultural workers  Enhances enforcement to prevent fraud and abuse  Simplifies and modernizes the H-2A application and temporary labor certification (“TLC”) process  Enhances the enforcement capabilities of the Office of Foreign Labor Certification (“OFLC”) and the Wage and Hour Division (“WHD”)  Modernizes the prevailing wage determination process 7 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Effective Date and Transition Period  The 2022 H-2A Final Rule became effective on November 14, 2022  Department’s ETA Handbook 385 guidelines apply if:  The Form ETA-232, Domestic Agricultural In-Season Wage Report, was submitted before November 14, 2022  2022 H-2A Final Rule procedures apply if:  The Form ETA-232 was submitted (mailed date) on or after November 14, 2022  The new OMB approved Form ETA-232 must be used if submitted on or after the effective date  Prevailing wage surveys conducted before November 14, 2022, based on the ETA Handbook 385 may be submitted if:  The surveys satisfied the 2022 H-2A Final Rule prevailing wage methodology requirements 8 For Government Training Use Only (January 2023) Prevailing Wage Surveys UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Regulatory Changes  Replaces the ETA Handbook 385 with new prevailing wage survey standards  Allows State entities other than SWAs to conduct prevailing wage surveys for use in the H-2A program (e.g., State agency, State college, or State university), if that survey meets the methodological requirements  Establishes a regulatory process for SWAs to submit prevailing wage surveys to OFLC to review, approve, and post prevailing wages on OFLC’s Agricultural Online Wage Library  Revised the Form ETA-232 10 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR New Prevailing Wage Survey Criteria  OFLC Administrator will issue a prevailing wage for the crop activity or agricultural activity if a prevailing wage survey meets all of the requirements in § 655.120(c)(1):  The SWA submits a prevailing wage survey with Form ETA-232, which explains the methodology used to conduct the survey, see § 655.120(c)(1)(i)  The survey was independently conducted by the SWA or another State agency, State college, or State university, see § 655.120(c)(1)(ii)  The survey covers work performed in a single crop activity or agricultural activity and, if applicable, a distinct work task(s) performed in that activity, see § 655.120(c)(1)(iii)  The survey covers an appropriate geographic area, based on consideration of three factors (i.e., available resources to conduct the survey; the size of the agricultural population covered by the survey; and any different wage structures in the crop activity or agricultural activity within the State), see § 655.120(c)(1)(vi) 11 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR New Prevailing Wage Survey Criteria (cont.) ▪ The surveyor contacted employers to collect wage data as required by § 655.120(c)(1)(iv) (i.e., all employers or a randomized sample) based on the estimated universe of employers, as addressed in slide 13 below ▪ The survey data is not unduly impacted by the wages of a dominant employer (i.e., a single employer whose wage data represents 25 percent or more of the sampled wages), as required under § 655.120(c)(1)(ix) – as addressed in 14 below; ▪ The survey reports the average wage of U.S. workers in the crop activity or agricultural activity (and distinct task(s), if applicable) and geographic area, as required under § 655.120(c)(1)(v); 12 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR New Prevailing Wage Survey Criteria (cont.)  The average wage reported in the survey is based on: • • • the unit of pay used to compensate the largest number of U.S. workers whose wages are reported in the survey, as required under § 655.120(c)(1)(v); the wages of 30 or more U.S. workers receiving that unit of pay, if the estimated universe is at least 30 U.S. workers.

Alternatively, if the estimated universe of U.S. workers is less than 30, the average wage reported is based on the wages of all such workers, as required under § 655.120(c)(1)(vii); and the wages of 5 or more employers in that unit of pay, if the estimated universe is at least 5 employers. Alternatively, if the estimated universe of employers is less than 5, the average wage reported is based on the wages of U.S. workers employed by all such employers, as required under§ 655.120(c)(1)(viii). 13 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR New Prevailing Wage Survey Criteria (cont.)  Estimated Universe of Employers under 655.120(c)(1)(iv)  If the estimated universe of employers employing workers in the crop activity or agricultural activity (and distinct work task(s), if applicable) in the geographic area to be surveyed is five or more, the surveyor must either: ▪ Make a reasonable, good faith attempt to contact all employers in the estimated universe; or ▪ Conduct a randomized sample of all the employers in the estimated universe and contact all of the employers in the randomized sample.  If the estimated universe of employers is four or fewer, the surveyor must contact all employers in the estimated universe 14 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR New Prevailing Wage Survey Criteria (cont.)  Dominant Employer under § 655.120(c)(1)(ix)  Where the estimated universe of employers is at least four, the wages paid by a single employer may not represent no more than 25 percent of sampled wages in the unit of pay  However, where the estimated universe of employers is three or fewer the prevailing wage methodology provides an exception to the 25 percent ceiling on sampled wages from a single employer. 15 For Government Training Use Only (January 2023) Filing and Review of ​Form ETA-232, Domestic Agricultural In-Season Wage Report (“Form ETA-232”) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Form ETA-232 Filing Procedures  SWA prepares and submits the survey with the new Form ETA-232 as approved by the Office of Management and Budget.  OFLC strongly recommends submitting the survey and Form ETA-232 electronically, using the Agricultural Wage Surveys email box at [email protected].

If electronic filing is not feasible, mail the survey and Form ETA-232 to the U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, National Prevailing Wage Center, 200 Constitution Ave., NW, Box N-5311, Washington, DC, 20210. 17 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Review of Form ETA-232 Th;s form is for use of State Workforce Agencies to submit sutvey results for prevaiHng wage determinations. Please read and review the Form ETA-232 form instructions carefully before completing this the Office of Foreign Labor Certification website al https.l/Vvivw.dol.gov!agenciesleta/foreign-laborlforms. Those items marked with an asterisk(; are required and must be completed.

Items marked with the section symbol(§) are conditional and are to be completed if tl1e condition is met. torm eleclmnica/Jy. A copy of the instrucuons can be found on A. Stat,e Workforce Agency Prevailing Wage Survey Point of Contact 1. Name * 2. Title* 3.

State * 4. Telephone number * 5. Email .address * 18 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Form Review of ETA-232 B. Survey Information and Results 1. Is the ETA-232 a resubmission? * 2.

A copy of the wag,e surv,ey is attached. * 3. Identify the State agency .. college. or university that conducted the survey. * 3a. Surveyor name. if different from Item A.1. 3b.

Surveyor title. 3c .. Surveyor telephone number. 3d .

Surveyor email address. 4. Identify the geo , raphic area of the wage report. * . 19 For Government Training Use Only (January 2023) J Yes □ No J Yes UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Form Review of ETA-232 5 .

Identify the crop activity o r agri cultura l activity cove red by t he survey .. * I 5a. !Identify the distinct w ork task(s ) in the cro p activity or agricultural activity cov ered by the survey . " 6 . T he s urvey result meets each regulatory c riteria to prod uce a prevailing w age rate (See Sectio n C ).. * I :J Yes □ No 6a. Prevailing w age rate.

§ 6b. Per ( choose o nly one) § $ w Hour w W,eek □ M onth Piece Rate (unit): 7. Comments (describe vari ables affecting rates, crop cond it ions. or ot her explanatory and perti nent information): § 20 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Review of Form ETA-232 C . Surve y Da.ta a nd Methodology 1 .

The s u rvey was in dependently con ducted by th e State· (e .g . , any State· agency., State colleg,e., or State univ ,ersity). "' □ Y,es □ No 2 . The survey covers work pertormed i1n a single crop, activ ity a ir agricu ltur.al activity .a n d , irf applicable. a dli1stinct work task □ Yes or tasks perto irmed in th at c r op activity or agn:cultural activirty .... □ No 3. The survey ooveirs an appropn1ate geogr.aphi1c ar,ea bas,ed o n avai lab le r,esoumes to cond u ct the survey, he s i1ze of the □ Y,es □ No agricu ltural population cover,ed by tll'le surv,ey, and any d iiffeire n t wage stru ctures in th e crop activ irty or agricul u ral activity wi1th in the State .. * 3a.

Expla illll how the s u rveyor determiined the scope o f the· ,g eog1raphic .area to surv,ey . "' 4 .. F a ir tlhe geogr.a p hic area. th e s U11veyor (mark o n ly one ): * Attem pted to c o n taot all employers e m p loy ing1 workers iin th e cr op activity or agriio ultu ral activ irty and, if app licab le , dli1stinct work task(s) perfonned ·in tlh at cmp .activity or agrioultu ral actiivity C.J C o n tacted a randomiiz;ed sam p le of such ,e,mployers CJ Conta cted all s uch e m ployeirs (r,e q uir,ed whe r,e the ,es ,imated universe of e m ployeirs in lltem C .4b is le ss th an 5) □ None o f tlhe above 4a. Name of the· sou irce ( s) used to identify the· emp loyers t h at employ U .S workers in t h e c r op .activity or agricultural act ivity ( a n d distin ct work task( s ), if applicable ) a n d ,geog1raph ic area s u rveyed : *' 4b.

Estimated number of employ,ers i:dentitii-ed throu:g h tlhe souirce(s) in lltem C .4a: ... .. r'' ■I l - - ~- 4c .. E stimated n umber of U.S. work-ers identif1ied . .. through th e souroe(s) i1ni Item CAa: "' .. .. .. .. .. . . , .. I ~ ~- 21 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Review of Form ETA-232 5. The survey reports the average wage of U.S. workers in the crop activity or agricultural activity (and distinct work J Yes task(s), if applicable) and geographic area using the unit of pay used to compensate the !largest number of U.S. workers J No whose wages are reported in the survey. * I Sa.

Identify the unit of pay used to compensate the largest number of U.S. workers in the crop activity or agricultural activity (and distinct work task(s) if applicable) and geographic area surveyed. * 6. If Item C.4c is at least 30, the survey includes the wages of at least 30 U.S. workers in the unit of pay in Item C.5a, OR J Yes □ No If Item C.4c is less than 30, the survey includes the wages of all such U.S. workers. * 7. If Item C.4b is at least 5, the survey includes wages of U.S. workers employed by at least 5 employers in the unit of pay in Item C.5a, OR If Item C.4b is less than 5, the survey includes the wages of U.S. workers employed by all such employers. * □ Yes □ No 8. If Item C.4b is at least 4, the wages paid by a single employer represent no more than 25 percent of sampled wages in □ Yes □ No J N/A the unit of pay in Item C.Sa. * (Not applicable if the estimated universe of employers in Item C.4b is less than 4.) 22 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR OFLC Review and Posting upon Approval ▪ NPWC reviews the submission and, if all prevailing wage methodology criteria are met, approves the prevailing wage finding ▪ NPWC may request additional information regarding the survey and survey methodology if necessary ▪ Upon approval of the prevailing wage finding, NPWC posts the prevailing wage rate(s) on OFLC’s Agricultural Online Wage Library (“AOWL”), https://www.dol.gov/agencies/eta/foreign-labor/wages/agriculture ▪ Once posted on AOWL, a prevailing wage rate remains valid for 1 year, unless replaced with an adjusted prevailing wage rate.

If not replaced, the prevailing wage rate will be removed from AOWL after 1 year. Note: If the wage rate is adjusted, that adjusted wage rate is valid for one year from the date posted on the AOWL. 23 For Government Training Use Only (January 2023) Examples UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Example: Less Than 5 Reported Employers and 30 Reported U.S. Workers Estimated Employers Estimated U.S. Workers Number of Reported Employers Number of Reported U.S. Workers’ Wages Survey Must Have Employer’s Response Rate Analysis (Looking for reported wages in the unit of pay for the largest number of workers) ETA-232 C.4.b ETA-232 C.4.c. ETA-232 C.7 ETA-232 C.6 4 29 4 29 100% Employers: Since the survey estimated less than 5 employers in the universe, the survey must report all wages from all 4 estimated employers. Workers: Since the survey estimated less than 30 workers in the universe, the survey must report wages in all units of pay for all 29 estimated workers.

Unit of Pay: The survey must report all units of pay. We are looking for the unit of pay that pays the largest number of workers out of the 29 reported workers. For example, if 20 workers out of 29 were paid hourly, and 9 workers out of 29 were paid in piece rate. Therefore, the prevailing wage analysis is focused on the 20 workers who are paid hourly.

Hourly is the unit of pay used to compensate the largest number of workers. 25 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Example: 5 Reported Employers and 30 Reported U.S. Workers Estimated Employers Estimated U.S. Workers Number of Reported Employers Number of Reported U.S. Workers’ Wages Survey Must Have Employer’s Response Rate Analysis (Looking for reported wages in the unit of pay for the largest number of workers) ETA-232 C.4.b 5 ETA-232 C.4.c. 30 ETA-232 C.7 ETA-232 C.6 5 30 100% Employers: Since there are 5 estimated employers in the universe, the survey must report all wages from all 5 employers. Workers: Since the survey estimated 30 workers, the survey must report all wages for all 30 workers. Unit of Pay: We are looking for the unit of pay used to compensate all 30 workers’ wages.

All 30 workers must be paid in the same unit. 26 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Example: Dominant Employer Assessment How NPWC assesses whether wages paid by a single employer represent no more than 25 percent of the sampled wages in the unit of pay. Reported Employers Reported U.S. Workers Reported Wage Paid A B C D E F ~ Total: 6 I 1 7 1 2 2 5 j 18 $12 10 14 13 11 10 69 27 For Government Training Use Only (January 2023) Unit of pay used to compensate the largest number of U.S. workers whose wages are reported in the survey Piece rate Piece rate Piece rate Piece rate Piece rate Piece rate - UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Example: Dominant Employer Assessment Calculation ▪ : Look at the list of employers to see which has the highest number of workers. In the First example provided, the highest is 7 with Employer B ▪ Second: Sum the number of workers whose wages are reported in the unit of pay.

In the example provided, the total is 18 ▪ Third: Divide the highest number of workers (7) by the total number of workers (18) to determine if that employer’s wages exceed the 25% limit ▪ 7/18 = .38x100 = 38% ▪ 38% exceeds the 25% limit. The survey is invalid because the Employer B’s wages exceed the 25% threshold. Therefore, NPWC will post a “No Findings” for the survey 28 For Government Training Use Only (January 2023) UNITED STATES DEPARTMENT OF LABOR UNITED STATES DEPARTMENT OF LABOR Reminders ▪ The survey should be included with the Form ETA-232 ▪ The number of workers employed by the employers should be included in the survey ▪ All units of pay should be included in the survey if applicable ▪ When the estimated and reported universe of employers are less than 5, the survey should include all wages from all employers (100% response rate) ▪ Request for additional information regarding the survey and survey methodology will be sent if necessary 29 For Government Training Use Only (January 2023) ,._ ' I I ___ I I - "'H,:,.§~~Q__ - - ,.,,._f,wn,11~r~-±;~t• Questions