PREVAILING WAGE ISSUES

[ 02/25 03:08 来源：美国中文在线 ]

9.1 Will employers be required to obtain a prevailing wage determination from a State Workforce Agency?

Yes, employers will need to submit a request for a prevailing wage determination to the appropriate State Workforce Agency (SWA) prior to beginning recruitment or filing the application. The employer must begin recruitment or file the labor certification during the validity of the SWA’s prevailing wage determination.

The SWA will normally rely on the wage component of the DOL’s Occupational Employment Statistics (OES), with the state office assigning a wage based on the skill level of the position. Absent a collective bargaining agreement, employers may submit alternative wage survey information with their labor certification applications, but such data will have to be endorsed by the state office prior to filing the application. The rule outlines standards for alternative survey methodology that are generally consistent with current practices; however, employers will be permitted to submit wage surveys utilizing the median in addition to the mean as a measure of central tendency. The rule eliminates the requirement of using Davis-Bacon Act or Service Contract Act wages for jobs covered by those Acts, though it permits their use if an employer so wishes. A wage determination will be valid for filing a period of 90 days to one year after issuance by the SWA, depending on the state office.

9.2 Will the 5% wage differential still be in effect?

The rule eliminates the ability of employers to offer the employee five percent less than the prevailing wage. This change is also being implemented for new H-1B labor condition application filings (LCA) pursuant to recent legislation, and the PERM regulation cites the new law. The effective date for the new prevailing wage rule is March 8, 2005. While some implementation issues remain, it is clear that the 5% differential will not be able to be used for newly filed cases after the prevailing wage provisions take effect on March 8, 2005. Additionally, the new legislation calls for a four-tiered rather than two-tiered OES wage system.

9.3 How will the DOL evaluate the SVP for a job?

The Specific Vocational Preparation (SVP) is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job. Such training may be acquired in a school, work, military, instructional or vocational environment. SVP levels were originally created in conjunction with the DOL’s Dictionary of Occupational Titles (DOT), but the regulation confirms that the DOT will no longer be used. Rather, the DOL’s Occupational Employment Statistics (OES) system, which contains a dramatically smaller number of occupational categories than were available in the DOT, will be used exclusively in determining the SVP level. With fewer available occupational categories, the burden on employers to demonstrate that a job opportunity’s stated requirements are indeed the actual minimum requirements becomes more difficult. The OES categorizes jobs according to five Job Zones, and each Job Zone contains a range of SVP levels. This relates to the question of what is “normal” for the occupation and when a business necessity justification might be required, as discussed below.