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Joel Stewart on PERM Labor Certification

PERM: Challenging Prevailing Wage Requests

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Now that the prevailihng wage crisis is ending, determinations are being issued and things are getting back to normal -- well almost.


Perhaps because of lack of training or need to do PWD's very quickly, stakeholders report a growing number of inaccurate and unusually high PW'D's.


Determinations are very complex and much is left up to the sagacity of the officers who make them.


The wide range of miscalculations stems from the fact that the Agency may believe there are two methods to determine prevailing wage. Employers are also partly to blame, because they do not understand how the prevailing wage should be calculated.


The best way to learn is to download a copy of the May 9, 2005, prevailing wage guidance from the internet.  It consists of 38 pages, and should be studied carefully before filing a Prevailing Wage Request. http://www.foreignlaborcert.doleta.gov/pdf/Policy_Nonag_Progs.pdf


The gist of the PW problem is the perception that it may be calculated in either of two different ways. According to the guidance,


"The new requirements specify that determinations using a government survey shall be made available for each occupation at 4 levels of wages commensurate with experience, education, and the level of supervision. The SWA shall make a prevailing wage determination selecting one of the four wage levels for an occupation based on a comparison of the employer's job requirements to the occupational requirements: tasks, knowledge, skills, and specific vocational preparation (education, training, and experience) generally required for acceptable performance in that occupation."


The Guidance goes on to say that the four levels are Entry Level, Qualified, Experienced, and Fully Competent, however, these terms are poorly defined and hard to understand. Even the titles seem inconsistent when viewed together.  For example, what is the difference between Entry Level, Qualified, Experienced and Fully Competent?  Does Entry Level describe a job with no experience requirement at all?  If the job requires a qualified applicant, wouldn't that person be experienced as well?  The vagueness of the four levels promote highly subjective determinations which can not be defended in fully objective terms.


The second method is the step by step approach, using a point system and work sheet, which seems easier to understand, since the agency merely adds points as appropriate according to specific instructions.


Viewing the Guidance as a whole, it seems that the Experience Level approach is not supposed to be used to determine wages. The point system must be used to obtain the appropriate Experience Level -- not the opposite.  Until this issue is resolved by BALCA (whether the Agency may rely on a vague interpretation of Wage Levels independently of the totality of points), determinations will continue to be issued haphazardly, often assigning higher levels than required.


Employers should appeal prevailing wage determinations by using the appeal procedure outlined in the regulations. In most instances it is likely that the Agency will "correct" errors, where the point system was not used to determine the Experience Level.


I remember one time we had a seminar on ILW.COM, and there were two speakers. This was back before January 1, 2010, when prevailing wages were still calculated by the States. One was from the Florida Prevailing Wage Unit and the other from California. The Florida officer stated that he used only the point method, and ignored the wage level  approach, while the officer from California stated that she subscribed to the opposite point of view and used the wage level analysis to override the totality of points.


The extreme differences in approach and opinion were exacerbated prior to January 1, 2010, when the states still calculated the wages, due to the broad range of opinions, attitudes and procedures used to calculate wages either by the point method or by the wage level analysis. Employers and many attorneys with local practices grew accustomed to the pecularities of wage determinations in their individual states.


The process has been centralized at ETA-DOL, but the federal agency has not yet come to terms with the incongruity of the two-pronged approach. PWD's do not explain which approach was used, or why, and the explanations given in the determinations do not adequately explain how the agency determined the prevailing wage. They are stated, essentially, in conclusory form with little explanation.


If the agency does not issue determinations in accordance with the law, the Employer should argue before BALCA as outlined in the regulations. This would enable a sense of order and predictability to enter into the prevailing wage determination procedures of the agency. 

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