US Labor Department announces comprehensive final rule on H-2B foreign labor certification program

Image via Wikipedia

Secretary of Labor Hilda L. Solis

The U.S. Department of Labor's Employment and Training Administration and its Wage and Hour Division today announced a final rule to improve the H-2B temporary nonagricultural worker program. The rule, to be published in the Feb. 21 edition of the Federal Register, includes changes to several aspects of the program to ensure that U.S. workers receive greater access to jobs and strengthens worker protections.

The H-2B program allows the entry of foreign workers into the United States on a temporary basis when qualified U.S. workers are not available, and the employment of those foreign workers will not adversely affect the wages and working conditions of U.S. workers. The H-2B program is limited by law to a cap of 66,000 visas per year.

"The H-2B program is designed to help businesses when there is a temporary shortage of U.S. workers," said Secretary of Labor Hilda L. Solis. "The rule announced today will ensure that the program is used as intended by making these jobs more accessible to U.S. workers and providing stronger protections for every worker."

The department responded to comments received from employers and worker advocates in drafting the final rule, providing employers with greater flexibility and certainty throughout the application and recruitment processes as well as improving U.S. workers' access to jobs. The final rule creates a national registry for all H-2B job postings and increases the amount of time during which U.S. workers must be recruited. The rule also requires the rehiring of former employees when available.

In addition, H-2B program benefits such as transportation costs and wages will be extended to U.S. workers performing substantially the same work as H-2B workers. Worker protections also will be strengthened by enhanced transparency throughout the employment process.

The rule will be effective on April 23. It can be viewed at http://s.dol.gov/MZ. Materials, including fact sheets, are available athttp://www.foreignlaborcert.doleta.gov/h-2b.cfm and http://www.dol.gov/whd/immigration/H2BFinalRule/index.htm.

Related articles

• Labor Dept. Issues New Rules for Guest Workers (nytimes.com)
• US Department of Labor continues to cite beauty salons and manufacturers for formaldehyde exposure from hair smoothing produc (workers-compensation.blogspot.com)
• OSHA fines Paterson, NJ, company $126,000 for failing to guard machines and exposing workers to fall and electrical hazards (workers-compensation.blogspot.com)
• Howard Foster: Why Do We Have Immigration When Unemployment Is High? (huffingtonpost.com)

US Labor Department, Colorado Department of Labor and Employment sign agreement to reduce misclassification of employees as independent contractors

Nancy J. Leppink, deputy administrator of the U.S. Department of Labor's Wage and Hour Division, and Ellen Golombek, executive director of the Colorado Department of Labor and Employment, signed a memorandum of understanding Dec. 5 regarding the improper classification of employees as independent contractors. Following the signing, Leppink and Golombek hosted a press teleconference during which they discussed how the U.S. Department of Labor and the Colorado Department of Labor and Employment will embark on new efforts, guided by this memorandum, to protect the rights of employees and level the playing field for responsible employers by reducing the practice conducted by some businesses of misclassifying employees. This partnership is the 11th of its kind for the U.S. Department of Labor.

"This memorandum of understanding helps us send a message: We're standing united to end the practice of misclassifying employees," said Leppink. "This is an important step toward making sure that the American dream is still available for employees and responsible employers alike."

"Misclassification costs everyone," said Golombek. "It destabilizes the business climate by creating an unlevel playing field and causing responsible businesses to suffer unfair competition. The efforts we will be launching with the U.S. Department of Labor will promote accountability that Colorado employers and employees will welcome."

Employee misclassification is a growing problem. In 2010, the Wage and Hour Division collected nearly $4 million in back wages for minimum wage and overtime violations under the Fair Labor Standards Act that resulted from employees being misclassified as independent contractors or otherwise not treated as employees.

Business models that attempt to change, obscure or eliminate the employment relationship are not inherently illegal, unless they are used to evade compliance with federal labor law. The misclassification of employees as something else, such as independent contractors, presents a serious problem, as these employees often are denied access to critical benefits and protections — such as family and medical leave, overtime compensation, minimum wage pay and Unemployment Insurance — to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.Employee misclassification also generates substantial losses for state Unemployment Insurance and workers' compensation funds.

Memorandums of understanding with state government agencies arose as part of the U.S. Department of Labor's Misclassification Initiative, which was launched under the auspices of Vice President Biden's Middle Class Task Force with the goal of preventing, detecting and remedying employee misclassification. Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington have signed similar agreements. More information is available on the U.S. Department of Labor's misclassification Web page at http://www.dol.gov/misclassification.

Related articles

• US Dept of Labor Moves Aggressively on Misclassification of Employees (workers-compensation.blogspot.com)
• Labor Department Seeks Tougher Rules on 'Multiple-Employer' Plans (prescriptions.blogs.nytimes.com)
• Employer Co-Op Pays OSHA Fines after 26 Industry Employee Deaths (workers-compensation.blogspot.com)
• Winners - Safe Workplaces for Everyone photo contest (workers-compensation.blogspot.com)
• Acetone Explosion Results in $917,000 OSHA Fine for Bostik Inc. (workers-compensation.blogspot.com)
• Who Is An Independent Contractor: Deciding In a Multi-District Litigation Consolidation (workers-compensation.blogspot.com)