In April of 2012, the Department of Labor (DOL) issued a comprehensive set of new rules for the H-2B guest worker program, a temporary foreign worker program for jobs outside of agriculture that do not require a college degree. The new rules will help put unemployed Americans back to work, especially the workers hardest hit by the recession: young workers and those with a high school diploma or less.

An appropriations rider and ongoing litigation threaten to block implementation of the new H-2B rules through the next fiscal year. EPI believes the Labor Department’s H-2B rules should be implemented immediately to protect employment opportunities for American workers and prevent the exploitation of vulnerable foreign workers by H-2B employers.

How the New Rules Improve Recruitment Requirements for Unemployed U.S. Workers

• Create a national H-2B job registry for all H-2B job postings.
  • This gives U.S. workers a one-stop shop to search and apply for open positions that would otherwise go to H-2B workers. Current rules require the employer only to post an advertisement for 10 days with the State Workforce Agency (SWA) and for 2 days in a local newspaper during the 10-day SWA posting period.

• Employers must call back and offer re-employment to former U.S. employees if they were employed or laid off during the previous year, instead of only offering the job to U.S. workers laid off in the past 120 days.
  • Tripling the applicable length of time for this requirement, and offering H-2B jobs first to workers whether they were laid off by an employer or left voluntarily, opens up more opportunities for long-term under- and unemployed workers in lower-skilled occupations in the United States.

• If an employer is party to a collective bargaining agreement, the employer must contact the designated bargaining representative, or in the case that there is no bargaining representative, the job opening must be posted for 15 business days at two conspicuous locations at every place of anticipated employment.
  • Notifying the designated bargaining representative is the best way to ensure that current and former unemployed union members (even members of unions not represented in the site of anticipated employment) will be contacted about open positions. If there is no bargaining representative, requiring that the job opening be posted at the place of employment provides current employees with an opportunity to notify unemployed colleagues, friends and family members about job openings.

Enhanced Role for State Workforce Agencies:

• SWA will send job orders to DOL for posting on the national H-2B job registry.
• SWA will contact the appropriate union, when a job opening is within an industry or for an occupation that is customarily unionized (not just when a CBA exists).
• SWA must post the available job until 21 days before the date of need, instead of 10 days before the employer must file the application
  • This allows U.S. workers to apply for jobs up to three weeks before they are scheduled to begin, instead of months before, when they may be employed at a different temporary or seasonal job, making it difficult to plan for a possible job opportunity that will only be available three or four months in the future.

The New Rules Guarantee a Reasonable Number of Work Hours for Hired U.S. Workers and H-2B Workers

• Employer must offer jobs that are “full-time,” and the definition of full-time has been increased from 30 hours to 35 hours.

• The “three-fourths” guarantee: Employers must guarantee employment for a number of work hours equal to at least three-fourths of the workdays in every 12-week period (or every 6-week period for jobs lasting less than 120 days).
  • In conjunction, these two provisions ensure that workers have an adequate number of work hours to support themselves (making the jobs more attractive to U.S. workers).

Because many jobs in H-2B occupations offer wages that are at or near the federal poverty threshold, allowing employers to hire workers who will be offered a number of hours far less than what’s generally considered “full-time” – 40 hours per week – makes it extremely difficult for workers to afford basic necessities such as food and lodging.  Lodging is a particularly serious issue for workers who travel to take a job with an H-2B employer.

The H-2B Comprehensive Rule Does Not Include Any Wage Requirements for Employers

An earlier Labor Department rule establishing a new H-2B prevailing wage structure would have required that employers pay and offer H-2B jobs to U.S. and foreign workers at a true prevailing, or “market” wage. However, funding for that rule was blocked by an appropriations rider in 2011 and 2012. The 2012 comprehensive rule does nothing to address the issue of wages offered and paid to U.S. and H-2B workers.

• It is important to note that non-enforcement of DOL’s 2011 H-2B prevailing wage rule allows H-2B employers to continue to offer and pay wages to U.S. and H-2B workers that are far below the average wage for almost every occupation in every locality. In fact, this is what is occurring: According to DOL, in “96 percent of cases, the H-2B wage is lower” than the average wage.
  • The results of this underpayment are crystal clear. According to EPI’s analysis of Current Population Survey data, wages have either remained stagnant or declined in the major H-2B occupations of hospitality, food preparation, and landscaping.