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Bloggings On PERM Labor Certification

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

June 01, 2009

BALCA on SWA Wage Determinations

BALCA has ruled that an employer may not substitute a self-generated wage determination for one properly determined by the State Workforce Agency. See King's Garden 1 Chinese Restaurant, Inc. 2008-PER-228, April 13, 2009.

It is a well-known fact that the SWA is supposed to issue the prevailing wage determination, however, in this case the Employer merely went to the FLC Wage Data Center Online Wage Library and used what it determined to be the appropriate prevailing wage.

 When the CO audited the case,the Employer was unable to provide the SWA Prevailing Wage Determination. BALCA noted that According to the regulations, "employer must file their applications or begin the recruitment....within the validity period specific by the SWA." The phrase "by the SWA"  gives rise to the inference that only the SWA can make the determination.

There are several reasons why an Employer's determination might differ from the SWA's determination, even if they both come from the same Online Wage Library.

First, the SWA assigns a wage level, 1-4. This requires a certain amount of interpretation and discretion, since the rules distinguishing wage level 1-4 are complex.

Second, the wage determination also decides on the O*Net Code, and some job descriptions overlap, giving rise to a possible difference of opinion, for example, whether a job is that of Market Research Analyst or Economist.

Third, the SWA determination is "official" and provides an appeal process if the Employer believes the SWA has made an incorrect decision.

The Board did not mention that the regulation is defective in its current form, a fact whichhas been previously reported on this blog. The defect lies in the reference to 656.17(d) and 656.21, "...required by Sec. 656.17(d) or 656.21." These sections do not refer to regular processing but to specialized procedures for Schedule A and Supervised Recruitment. In fact, the regulation, which is assumed to apply to the regular PERM process, but does not.

I note that the Employer may have made its own PWD based on prior experience with H-1B Prevailing Wage Determinations. In H-1B cases, the Employer may use the on-wage library itself and is not required to use the services of the SWA. The advantage to use the SWA in H-1B cases is that the determination by the SWA determination provides a "safe harbor" which cannot result in penalties or findings of wrongdoing. In the PERM process, the concept of an "optional SWA determination" does not exist.

Also on this blog, we have reported about problems with SWA determination forms and language which are not uniform but individualized in each state and territory. The result is that some SWA Prevailing Wage determinations, including the forms required to request the PWD, are ambiguous and confusing.

The DOL was expected to centralize Prevailing Wage Determinations in the Federal Office, but the change has not taken place yet.