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BALCA Determines that Employer-Provided Survey is Acceptable Without Arithmetic Mean

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Recently, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether the National Prevailing Wage Center (“NPWC”) Director has the discretion to reject an employer-provided wage survey that does not include an arithmetic mean wage. The employer submitted a prevailing wage determination for the position of “speech language pathologist” and requested that the NPWC consider a wage survey from Compdata Survey. This survey provided a median wage, but did not include an arithmetic mean wage “because doing so would have violated guidance issued by the Department of Justice for ‘Statements of Antitrust Enforcement Policy in Health Care.’” The NPWC rejected the use of the survey because it failed to include an arithmetic mean wage. This decision was appealed on the question of whether the NPWC Director has the discretion to refuse to consider an employer-provided wage survey that did not contain an arithmetic mean wage. BALCA noted that “neither the applicable regulations nor the guidance document require an employer-provided survey to offer the arithmetic mean wage whenever the data to do so may be available. There is also no regulation or guidance that requires an employer provided survey to take extra measures to ensure that the arithmetic mean wage is offered.” Rather, the regulations provide that if a “survey provides a median and does not provide an arithmetic mean, then the prevailing wage applicable to the employer’s job opportunity ‘shall be the median of the wages of workers similarly employed in the area of intended employment.’” Consequently, the decision of the NPWC Director was determined to be an abuse of discretion and was remanded. This case provides critical information to employers who may employ greencard candidates in locations or sectors that cannot provide an arithmetic mean wage. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/

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