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Prevailing Wage Requests

By Joel Stewart

In case you haven't noticed, prevailing wage requests for PERM cases are now centralized and filed in Albany, instead of various offices in the state. The new form is on the Internet at the following address:http://www.labor.state.ny.us/formsdocs/does/ES%20415%20.pdf.

The new PERM Book 2008-2009 has a complete and expanded SWA section with prevailing wage links for each state and region. There are 53 in all, including the 50 states, Puerto Rico, Virgin Islands and Guam. The PERM Book 2008-2009 also has an extensive prevailing wage section, written by Jane Goldblum.

As a practice tip, I would like to remind everyone that prevailing wage determinations have been idiosyncratic, based on the SWA where the determinations were issued, and that employers should consider not only the worksheet (point system) but the progressive experience analysis to determine prevailing wages. Notwithstanding a finding of "1" on the worksheet, for example, an SWA may assign a "3" based on the fact that the job duties indicate that the worker is fully trained.

Here is a checklist of important issues to take into consideration.

Prevailing Wage Preparation Checklist

·        Job Zone level in the O*Net.

·        Specific Vocational Preparation (SVP) for Job Zone Level.

·        Level Three Equals SVP 6 (up to two years experience, education or training).

·        Job Zone Level Four Equals SVP 7 (up to four years experience, education or training).

·        Job zone Level Five Equals SVP 8 (up to 10 years experience, education or training).

·        SVP may include any post-secondary education, training or work experience.

·        Professional Occupations on Appendix D.

·        Bachelor?s, Master?s & Ph.D.

·        Special Skills & Licenses.

·        DOL Instructions to determine wage levels: http://www.flcdatacenter.com/skill.aspx. For example, ?Assist employer ?? or ?Work under direct supervision of employer? for entry level positions.

·        O*Net Wage Wizard. http://workforcesecurity.doleta.gov/foreign/wages.asp

·        Submit prevailing wage determination to the State Workforce Agency.

A back to basics approach is definitely in order, in view of the fact that DOL proposes to centralize Prevailing Wage Determinations in a federal office. On May 22, 2008, the Department of Labor published a proposed rule ?Labor Certification Process and Enforcement: Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes.?

The proposed rule would transfer prevailing wage determination determinations to the National Processing Center. DOL will provide a "Prevailing Wage Determination Request" (PWDR) for this purpose. The rule proposes that "Frequent User" employers may use the PWD for subsequent labor certifications:

"The Secretary will issue guidance pursuant to which employers receiving a PWD from an NPC may directly obtain a wage determination to apply to a subsequent application, when the wage is for the same occupation, skill level, and area of intended employment. In no case may the wage rate the employer provides the NPC be lower than the highest wage required by any applicable Federal, state, or local law."

My guess is that the change will benefit some regions of the country and create new challenges for others. For those who have been lulled into a false sense of security because they have not been challenged by their local SWA, consider this a wake-up call to review the basic rules on prevailing wage and get ready to prepare each PW request more carefully for presentation to the national office than to some of the SWAs in the past.

Full post as published by Joel Stewart's Blog on July 07, 2008 (boomark / email).