Two bills introduced in both the House and Senate last week would make significant changes to the H-2B guest worker program. Both the Increasing American Wages and Benefits Act of 2010 (S. 2910) introduced in the Senate, and the H-2B Program Reform Act of 2009 (H.R. 4381) introduced in the House of Representatives, would establish new procedural and monetary requirements for employers that seek to hire temporary foreign workers, as well as impose stiffer penalties for noncompliance with these new requirements.

The Senate bill, Increasing American Wages and Benefits Act of 2010, was reintroduced by Sen. Bernard Sanders (I-Vt.). The previous version of this legislation – introduced in 2007 – died in committee. This bill, among other things, would require employers to substantially increase their recruitment efforts before resorting to foreign labor and maintain for at least 3 years evidence of these recruitment efforts. In addition, this bill would provide the Department of Labor (DOL) with explicit authority to enforce labor law violations pertaining to the H-2B program; permit employees who have been adversely affected by the H-2B program to bring a civil action against their employers; prohibit companies that have announced mass layoffs within the past year from hiring H-2B guest workers; require employers to pay for the foreign worker’s transportation expenses to and from the U.S.; require employers to submit payroll records to the DOL to prove that they are paying the prevailing wage rate to the H-2B workers; impose a labor certification application fee, and establish regulations for H-2B foreign labor recruiters. Employers that violate the terms of this bill could face civil monetary as well as criminal penalties. With respect to the “prevailing wage rate,” the bill specifies that this rate be the amount set forth under the Davis-Bacon Act, the Service Contract Act, two-thirds of the DOL’s median rate under the most recent Occupational Employment Statistics Survey or 150 percent of the federal minimum wage, whichever ever amount is highest. Employers would be prohibited from receiving H-2B visas unless the prevailing wage rate has increased by at least 3 percent from the prior year, or the employer agrees to pay a wage rate that is at least 3 percent higher than the prevailing wage from the prior year.

The H-2B Program Reform Act of 2009 would similarly make it more difficult and expensive for employers to avail themselves of the temporary worker program. This bill, introduced by Reps. George Miller (D-Calif.) and Zoe Lofgren (D-Calif.), would require employers to register with the DOL before being able to apply for H-2B visas. The DOL would then set the number of H-2B visas each employer would be approved to use. The employer would need to pay an application fee, as well as a per-temporary worker fee. In addition, the employer would be required to certify with the DOL that it would, among other things, provide the same wages to the temporary worker that it pays to its non-H-2B workers with similar experience or qualifications, or the standard wage level for the occupational classification in the area of employment, which ever amount is greater. The employer would also need to certify that it would offer the same working conditions to the H-2B workers as it provides to other employees, as well as workers’ compensation. Moreover, the employer would need to give assurances that it has made good faith efforts to recruit citizen workers first. As under the terms of the Senate bill, employers would be required to take additional steps to recruit U.S. workers, including providing state workforce agencies and local unions with information about the job opportunity it seeks to fill with an H-2B guest worker.

This bill has been referred to the House Committees on the Judiciary and Education and Labor. The Senate’s Increasing American Wages and Benefits Act of 2010 has been referred to the Senate Committee on the Judiciary. 

Photo credit:  David Franklin