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Joel Stewart on PERM Labor Certification

BALCA Decides PERM Prevailing Wage Cases

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I just returned from several PERM workshops and conferences, one in Puerto Rico and one in Florida,  and decided to write about some recent BALCA decisions we discussed. The Board was quiet about prevailing wage issues for some time after PERM was introduced, but recently some new cases have been decided, giving us some insight into how the process for determining prevailing wages works and how disputes might be resolved.

In one case, Garmin International, Inc., 2008-PER-171, decided March 17, 2009, BALCA reviewed the Dietrich Private Survey which provided five wage levels for the occupation. The SWA had to crosswalk one of those five levels to the DOL's four-level system to accomodate the Employer's job offer of Aviation Softwear and Systems Engineer with two years experience, but no educational requirement. and no supervision. The Employer and the SWA, while agreeing on the validity of the Dietrich Survey, disagreed on the assignment of the correct wage level. The SWA stated that the employer's job most closely matched Dietrich Zone Five, while Dietrich the Employer insisted that Dietrich WageThree was correct. The Board said it agreed with the Employer that Dietrich level Five was inappropriate because the job offer had no supervisory duties, but also determined that the job functions were too sophisticated for Dietrich Zone Three. In conclusion, the Board found Dietrich Zone Four to be correct and ordered the CO to modify the wage to coincide with Dietrich Zone Four.

In Reed Elsevier, Inc., 2008-PER-201, April 13, 2009, the Board explains in simple language, how the prevailing wage analysis should work by using the procedure used in the DOL Guidance Letter, issued as an FAQ on May 9, 2005. The Guidance Letter explains that there are four wage levels. These levels should not be confused with the Five SVP Job Zone levels.  Every job begins with at least one point, i.e., with one wage level. Although the total number of points and levels are only "four," an additional point may be added above the first point for extra experience, education, special skills and supervisory responsibilities. For most jobs, normal education requirements are not counted, only greater than normal. Experience is normal if it is at the low end of the SVP range for the occupation. Thus, a job requiring two to four years experience would not add a point for two years experience required, but would add an extra point if four years experience were required. If a Bachelor's degree were normal for the job, no extra points would be added. But if the Employer required a Master's degree for that same job, an extra point would be added. If supervisory duties or special requirements like languages were required, a point would also be added. In this case, the SWA and the CO had counted the Master's Degree and experience in the aggregate, instead of adding only one extra point for the Master's, the four years required to acquire the Master's were added to one year experience to reach a total of five years of preparation time. Since the job opportunity of Industrial Engineer belonged to Job Zone Four, and a Bachelor's Degree was normal for the job, the CO had mistakenly determined a Wage Level Four to require two extra points, one because of the Master's Degree and one because the Master's degree was being counted as four years of preparation time. The correct analysis was to apply one point to start with and only one additional point for the Master's Degree. The correct wage would then be Wage Level Two, not Wage Level Four.

In Jesus Covenant Church, 2008 PER-200, September 14, 2000,  the Employer typed $16.20 in the 30 day job order instead of $16.48. The issue was whether he difference of 28 cents per hour would have produced more US Workers. The majority found that the error was clearly a mistake and does not lead to the conclusion that the job opportunity was not clearly open to US workers. Judge Vittone dissented, stating that Employer can never know whether potential applicants viewing the SWA job order would have been more likely to apply if they knew the actual wage offer was higher than the advertised rate.

In A Fresh Perspective, Inc., 2008-PER-203, March 31, 2009, the Employer downloaded a prevailing wage form from the State of California, "Arnold Schwarzenegger being listed as Governor," but filed it in Rhode Island, the local of the job site. From that point everything went downhill, including the fact that the Employer failed to provide evidence that the prevailing wage was properly issued. The Board upheld denial of the application. The case demonstrates the confusion that can occur in prevailing wage determinations which are handled by each of the states, territories and Puerto Rico, each in its own individual manner.

In C & C Consulting Engineers, 2008-INA-35, August 6, 2009, the Employer filed a pre-PERM applicaton with a prevailing wage offer less 5%. The SWA and the CO failed to take into consideration that only PERM cases must contain a prevailing wage that is at least 100% of the PW. The former rule allowed 95% of the PW The Board agreed with the Employer and vacated the denial. The case demonstrates that the CO's office does not properly review PW determinations by SWAs, even where the PW determinations are clearly erroneous as a matter of black letter law.

The cases demonstrate that some SWAs do not know how to interpret the May 9, 2005, Guidance Letter. This may be due to the fact that the Guidance Letter is very complicated and difficult to understand. In addition the Guidance Letter contains conflicting standards to determine the prevailing wage. Future Blog entries will discuss prevailing wage cases as they are determined by BALCA.

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  1. A.J.O.'s Avatar
    Last time I checked, effective Jan. 1, 2010 SWA's were to be replaced by a centralized, web-based prevailing wage determination system. This will, obviously, not going to happen. The same applies to the further development of the iCert portal, 45-60-day PERM processing plans, and a few other promises. These changes would eliminate jobs of people who are otherwise virtually unemployable. So, why bother...?
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