A case in which employers say new and higher federal wage rules for foreign workers would drive many of them out of business was moved back to Pennsylvania by a federal judge in Louisiana.
“The Department of Labor revised the H-2B wage rate as the direct result of the rulings and orders that took place in the litigation in the Eastern District of Pennsylvania,” U.S. District Judge Dee D. Drell said in a ruling late Monday. “Therefore venue of the present suit would be proper there.”
The H-2B program is one by which documented foreign workers are hired when no Americans will do the jobs.
Among those affected by the program are seafood processors. Testifying in an earlier court hearing, they said the much higher wages would effectively put them out of business or allow foreign competition to shut them down.
Edward T. Hayes, attorney for the American Shrimp Processors Association, said, “We are disappointed by the ultimate conclusion of the ruling, but understand it. We have a lot of respect for Judge Drell and he obviously carefully considered his role as a jurist and the overall impact of this particular lawsuit in the grand scheme of the H-2B program.
“While he decided to transfer the case, he expressed significant reservations regarding the Department of Labor’s implementation of the new wage methodology. That is what is most important to us, and we will continue to pursue this matter both in court and in Congress. This issue is too important and the impact on small- and medium-sized domestic employers too drastic not to pursue on all fronts,” Hayes said.
Drell was blunt. “We have serious concerns about issues placed before us in the merits, versus the decisions reached by the Pennsylvania court … but comity dictates the transfer based on the ‘substantial overlap’ in issues between our case and the case pending before Judge Pollak.
“Specifically, we find the employers’ complaints about the manner of determining the prevailing wage rate directly result from Judge Pollak’s orders to the Department of Labor, and to rule either on injunctive relief or on the merits of this determination would constitute a ‘trenching’ on the authority of our sister court” as prohibited by a higher court.
Furthermore, Drell said, “We may be sympathetic to the burden to be placed on employers by having to pay significantly increased wages with little to no advance warning by the Department of Labor, but sympathy does not outweigh the ‘substantial overlap’ that exists between our case and the one in Pennsylvania.”
And, he said, “Unless we have missed something that occurred in Pennsylvania that is not part of the court’s opinions, we remain frankly baffled that the Department of Labor apparently ignored the foregoing authorities in its ‘throw in the towel’ concession to Judge Pollak that employer concerns are not a proper issue for consideration in wage promulgation under H-2B.”
With the transfer, Drell said, employers’ concerns “may now be relevant to the discussion of the propriety of allowing the impact of employer hardship on the wage determination.”
In the meantime, U.S. Rep. Rodney Alexander, R-La., has introduced legislation to prohibit the Department of Labor from implementing H-2B wage rules. Alexander said his bill now has 26 co-sponsors. He also said he hopes in “the next couple of days” to have language in the appropriations bill to stop the Department of Labor from implementing the wage rule change.
“The Department of Labor is really way out of line and meddling with something that they shouldn’t be meddling with,” he said. He also said a federal judge in Florida may prohibit the department from implementing the change.
And U.S. Sens. Mary Landrieu, D-La., and Barbara Mikulski, D-Md., were successful in attaching an amendment to the appropriations bill to prohibit implementation.