Bayou Lawn & Landscape Services, et al. v. Hilda A. Solis

Final H-2B Wage Rule Violates the Administrative Procedure Act

U.S. Chamber's Position

NCLC urged the court to enjoin the Department of Labor (DOL) from enforcing a new rule that would radically alter the formula for determining wages employers must pay temporary alien workers under the H-2B visa program. In its amicus brief, NCLC argues that DOL’s regulations are invalid because Congress did not authorize DOL to issue new wage methodologies that are retroactively applied, regardless of a worker’s experience, education, or other relevant factors. Furthermore, even if Congress had given the Secretary of Labor authority to promulgate the new wage methodology rule, there is clearly no statutory basis for DOL to apply its new methodology to workers employed under H-2B visas approved by DHS prior to the effective date of the new rule. Finally, the new methodology adopted by DOL is inconsistent with the Immigration and Nationality Act, which requires that a tiered system be used for calculating wages. By using the highest wage rate available as a single-level “prevailing rate,” the DOL would be imposing a one-size-fits-all wage structure that would cost jobs and harm businesses.

Case Outcome

This case is not yet decided.

Procedural History

NCLC amicus brief filed 9/28/2011.  On 9/22/2011 the Department of Labor postponed for 60 days the effective date of the final rule - moving the effective date from 9/30/2011 to 11/30/2011.

Case Documents