The US Department of Labor holds Stakeholder meetings 3-4 times
per year to discuss technical issues with employers, bar
associations, student advisors, unions, government agencies, and
other interested groups.
At a recent meeting, questions were raised about prevailing wage
determinations for job offers involving combinations of
occupations. DOL always raises the prevailing wage level if a
position requires the worker to perform sets of duties that are
found in more than one occupation
Stakeholders explain that when a combination of job duties
appears in a PERM application, and the wages for each of the jobs
is different, DOL should look at the percentage of time spent in
the job duties of each occupation, and if a larger percentage of
time is spent in one (and a lesser percentage in the other), the
correct wage is the one for the job in which the employee will
spend the most time working. Currently, DOL automatically defaults
to the higher wage, regardless of the percentage of time.
Reconsideration of prevailing wage determinations is also very
muddled. DOL has a three step procedure:
First, DOL does not include uploads with extensive documentation
in its initial determination because of time constraints, but if
the determination seems unreasonable, employers can provide
supplemental documentation to the officer.
Second, the employer can escalate the issue to the director of
the National Processing Center to reconsider the
determination. If this type of review does not produce a lower
wage, the Center will at least provide a detailed explanation about
the methodology used in the wage determination.
The third option is an appeal to the Board of Alien Labor
Certification Appeals. The Board consists of administrative
law judges who review the matter from a broad, legal perspective,
but employers must expect considerable delays due to BALCA's
One stakeholder asked if employers could simply file new
prevailing wage requests rather than pursue three kinds of review
and reconsideration. The employer is always free to do that —
however, there is a rule that if two prevailing wage requests are
submitted for the same job offer, the higher of the two
wages has to be used!
An interesting point made by DOL is that as very few prevailing
wage determinations are appealed through any of the three steps,
and, as a result, DOL does not have sufficient feedback to identify
policies or procedures that need to be changed.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.