Construction Today - September/October 2012 - (Page 98)

Industrial By Doug Hass GUEST WORKERS SPUR DEBATE A s the construction trades continue to bounce back from the severe recession and overhang of the housing market downturn, the U.S. Department of Labor (DOL) and business groups have been waging an important but overlooked battle over the future of the H-2B non-agricultural guest worker visa program. On Feb. 10, 2012, the DOL’s Employment and Training Administration and Wage and Hour Division announced that it would issue a new regulation requiring employers that import foreign guest workers for seasonal positions to make a greater effort to recruit U.S. workers. Since then, the rule has become a hot button issue in both the federal courts and Congress. On April 23, a federal district court in Florida issued a temporary injunction against the implementation of the new regulation. Five companies, along with trade groups in the landscaping and forestry industries and the U.S. Chamber of Commerce, challenged the regulation on largely procedural grounds. On June 14, 2012, a Senate Committee approved an appropriations bill amendment that, if passed, would effectively prevent the DOL from implementing the new regulation. The district court’s ruling remains on appeal, and the Senate bill is mired in the stalled budget process. The H-2B guest worker visa program allows employers to hire non-skilled seasonal foreign workers, usually for less than a year, to come to the United States for non-agriculture jobs. Although demand for foreign workers in the construction industry has slowed along with the economy, the annual cap of 66,000 new visas has proven woefully inadequate. Many seasonal businesses, including food processors, municipalities, parks, hotels, resorts and landscaping companies compete with the construction industry for H-2B visas to fill seasonal needs. The H-2B visa program is one of the only foreign guest worker programs available to the construction industry. The DOL’s revised regulation would have a significant impact on the H-2B program. Under the regulation proposed by the DOL, employers would follow stricter guidelines in an attempt to ensure that qualified U.S. workers are truly unavailable for jobs. The new regulations create a nationwide online registry where employers must post all potential H-2B jobs, and for longer periods. Under the current regulations, employers have no central registry and need only post jobs for ten days as early as four months before their start dates. Under the new requirements, employers must recruit and hire qualified domestic workers until 21 days before the job start date. The long posting period necessarily complicates employers’ abilities to recruit and transport sufficient numbers of foreign workers in advance of a project. The DOL also proposed ending the current practice of allowing employers to self-certify that they had searched unsuccessfully for U.S. workers. The revised regulation requires employers to consult formally with their state workforce development agencies to oversee and document those recruitment efforts before the start of an H-2B contract. Employers would also be required to make any jobs available to U.S. workers they previously employed in those positions before seeking foreign workers under an H-2B contract. This new model injects additional bureaucracy and costs in H2-B contracts for construction industry employers. In addition, the DOL included other provisions that appear to give unions some new leverage. Under both the current and proposed rule, employers of H-2B workers must offer 100 percent of the prevailing wage and must test the U.S. labor market to determine if there are sufficient numbers of qualified U.S. workers. Under the DOL’s new approach, though, in occupations that are customarily unionized like the construction trades, even if an employer is not a signatory to a collective bargaining agreement, the rule facilitates consultation with unions regarding wage levels and terms and conditions of employment for the vacancies. Mixed Reactions Reactions to the new regulation have been mixed. The potential wage increases and compliance costs under the rule led the Associated Builders and Contractors to lobby Congress to block the rule, saying that the DOL had “issued a rule that would have tremendously increased labor cost for employers that use this program that far exceeds rational economic levels.” On the other hand, the AFL-CIO’s Building and Construction Trades Department has called the Senate bill “outrageous” and claims that without the new rule, employers will use the existing H2B program “to do construction work at below prevailing wages, thereby undercutting local standards.” The news is not all bad for H-2B workers or the construction firms that hire them. The new regulations provide significant protections for 98 CONSTRUCTION-TODAY.COM SEPTEMBER/OCTOBER 2012 http://www.CONSTRUCTION-TODAY.COM

Table of Contents for the Digital Edition of Construction Today - September/October 2012

Construction Today - September/October 2012
Construction Law
Green Construction
Best Practices
Lighting Technology
HDC Development Cos.
NorthPoint Development
Cornish & Carey Commercial Newmark Knight Frank – Moffett Towers
Demar Plumbing Corp.
Howard S. Wright – Tony Nelssen Equestrian Center
Rommel Cos.
NOW Specialties Inc.
NOW Specialties Inc.
Sioux Chief Manufacturing Co.
Victor International
Starwood Land Ventures
LaValley Building Supply
Congress Construction
McCormack Baron Salazar Inc.
Related California – The Village at Santa Monica
Ricco Construction
Taisei Construction Corp.
WPM Construction
WPM Construction – WR Sage West Apartments
Flagger Force
Miami International Airport – North Terminal improvements
Graham Construction and Engineering – Wastewater Treatment Plant Upgrade
Hydrema US Inc.
CARCON Industries
Dennis’ 7 Dees
G.W. Peoples Contracting Co. Inc.
International Airport Development Co. Ltd. – Argyle International Airport
TL Wallace Construction Inc.
TL Wallace Construction Inc.
Morrison Hershfield – Newfoundland
APEX Block Corp.
Teqton Inc. U.S.
Dakota Transload
Empyrean Services
West Side Tractor Sales Co.
U.S. General Services Administration/VCC – FBI field building
Kohler Ronan LLC
Turner Construction – Martin Army Community Hospital
Last Look

Construction Today - September/October 2012