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Not content with the December Ninth Circuit Court of Appeals decision striking down its original interim final rule, the Department of Labor is trying again, releasing a new version in the waning days of the current administration which pays lip service (and not much else) to a few of the criticisms of the original rule.
As before, the proposed rule will very significantly increase the wages required at all four levels of the DOL wage survey by revising the wage level computation methodology. The original Interim Final Rule published in October, and apparently the new version of the rule as well see the four wage levels increased, respectively, from approximately the 17th, 34th, 50th, and 67th percentiles to approximately the 45th, 62nd, 78th, and 95th percentiles.
One correction in this new rule to the originally published Interim Final Rule fixes the problem, evident in the online OES survey after implementation of the original October rule, where no wages could be provided at the four individual survey levels for certain occupations in certain geographies due to lack of data under the new calculation method. This made it impossible, as a practical matter, to determine the survey wage for these roles in these geographies and so prevented LCA filing and prevailing wage determination entirely in these instances.
This rule has not actually been published in the Federal Register yet (this is anticipated for Thursday, January 14, 2021 at this writing), and will take effect 60 days from when it is published. Further, it’s expected that the incoming Biden administration will issue a blanket 60-day hold on implementation of any regulations published by the current administration between the election and the inauguration – thereby stretching the period before this rule would take effect. It’s less clear whether the Biden administration will ultimately retract the rule in its entirety.
If allowed to become effective, the team that litigated the validity of the original October 8 Interim Final Rule has pledged to litigate the new rule as well.