In response to a recent court decision vacating portions of the Department of Labor's current prevailing wage rate regulations, the Departments of Labor and Homeland Security published an interim final rule in the Federal Register last week that articulates the methodology that will be used to calculate prevailing wages for H-2B guestworkers.

The H-2B program allows employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs if certain regulatory requirements are met. The new rule establishes that the DOL will use one of the following tools to determine prevailing wages: regulations under the McNamara-O'Hara Service Contract Act or Davis-Bacon Act, Occupational Employment Statistics (OES) provided by the BLS, collective bargaining agreement information, or employer-provided survey data. To the extent that prevailing wages are determined based on OES data, the DOL will calculate the overall mean of all persons in the occupation in question as opposed to providing rates based upon four levels, as was previously done. Read more.