In a presentation last week before human resource practitioners and members of the Saipan Chamber of Commerce, Guam Employers Council executive director Andrew Andrus explained the exclusion was based on the final regulations for H2B workers as recommended by the U.S. Department of Labor.
“Rates of pay, benefit data, and related information pertaining to persons currently employed and holding H-1, H-1B, H-2b and other temporary work visas are to be excluded from the survey,” Andrus said.
Citing the regulations 20 CFR Part 655, Andrus said, “The survey cannot as in any part of its data, wage and information reflect the wages of H-2B workers and other nonimmigrant workers. That is what I originally put in there. That was what has been taken issue with. It is still up in the air.”
He said there has been some discussions as to how exactly this should apply. “This provision may be revised in the next week or so depending on what kind of direction we get from those in authority.”
He also said in his previous discussion with the U.S. Labor, he was told the regulations offered for use “is the standard.”
Saipan Chamber of Commerce president Douglas Brennan said, “My understanding is that anybody that has a U.S. sanctioned visa will not be included for the reason those positions are already being paid the prevailing wage not for this geographic region. The prevailing wage used for those visas is for Guam, Hawaii, Wake Island and the mainland,” Brennan said.
Chamber executive director Richard Pierce said, “The chamber and Andy Andrus from the Guam Employers Council, have been in contact on numerous occasions with U.S. DOL and the Office of Foreign Labor Certification in Washington. The methodology is based upon their recommendations and material in federal regulation guidelines. That’s why the cover letters state the rates of pay and benefits of persons currently holding H-1, H1B, H-2B and other temporary work visas are not to be included in the survey.”
There were concerns raised by some members of the audience during Andrus’s presentation with regard to the methodology.
Society for Human Resource Management-NMI chapter board member Eric Plinske said, “The one main thing that they were concerned about is that he [Andrus] was referencing a federal register that was for H-2B visa workers. They were asking why would we worry about referencing that document when we are not talking about applying for H-2B visas.”
For Plinske, the CNMI’s situation is unique and the regulations for H-2B that Andrus was asked to use may not be applicable and there may be a need to verify if that is the right document to reference. He said the chamber is already in discussion with the U.S. Department of Labor to get clarifications.
“Another big question, in the survey, can we include the people that are not currently holding a U.S. visa but will likely qualify for the contract worker visa. My understanding is we will have those people involved in the survey,” he said.
He also said in the absence of the prevailing wage in the CNMI, with workers employed in the CNMI holding U.S. visas and receiving wages based on New York, Hawaii, or federal rate, “it will be to our best interest not to use them.”
Andrus, responding to the concerns raised on the regulations cited and methodology in question, said: “It is my understanding that the whole purpose of trying to develop a prevailing wage is to protect the local workforce.”
He added, “They want to know what the current local force is being paid. They don’t want to entrench on those rates of pay. This is why they want to exclude all those temporary type labor visas, the wage rates for persons holding that, whatever that maybe. They want to measure just the rates of pay of the local workforce. This is the prevailing wage of the local workforce.”
The Saipan Chamber of Commerce is targeting 300 businesses and organizations to participate.
Brennan told Variety, “I think if we get active participation from as many businesses as we can, as they [CNMI Department of Commerce] mention there were 1,500 businesses registered in the CNMI, I’d like to see well over 300 of those participate especially the government. I hope people use the descriptions of the job classifications, not the job description they use locally to qualify each position and that we get a very good cross section of the prevailing wage in the CNMI.”
With regard to the administration intending to conduct its own survey, Brennan said in their meeting with Gov. Benigno R. Fitial and Press Secretary Angel Demapan, “there was a spirit of cooperation.”
“They have pledged to cooperate with us and participate in this survey,” he said as he had also indicated the chamber’s acknowledgment of confidentiality that some regulations prevent the government from producing some type of information or making that information public.
He also told Variety that government survey could actually be turned into a census.
He said, “When [Commerce Secretary] Sixto Igisomar spoke to us, he mentioned that they were going to do basically a job survey piggybacked off the most recent information, I believe, was 2009 or 2010.”
Brennan also emphasized that the survey’s purpose is “complete confidentiality.”
“Mr. Andrus is absolutely adamant about confidentiality. He doesn’t like the figures manipulated in any way, shape or form.”
Brennan also described Andrus, “an excellent choice” to do the survey given his background and his knowledge of the program.
Survey benefits everyone
There is no charge in participating in the survey and the chamber encourages as many businesses to take part in it.
The chamber also clarifies that they will not be selling the final report once this is made available.
Pierce said they don’t want to get into the business of selling the report; however, those who participated will get the report immediately. Those who didn’t participate may have to wait for 30 to 60 days to get it.
To date, over 200 organizations have committed to participating in the survey.
Pierce told Variety last week, “The chamber was pleased with the interest expressed in conducting a prevailing wage survey, both at the general membership meeting and the multi-purpose center. About 160 attended both events. We’ve had over 200 organizations and companies already commit to the survey itself. We expect greater participation as we approach the initial electronic mailings in about a week.”
Everyone gets to benefit from the survey, Pierce said.
“Those already holding jobs in the CNMI will benefit from a prevailing wage rate set at an amount that would protect those job holders. It will benefit employers and employees that will apply for U.S. visas who want current competitive wage rates set at local standards, not those in California or Hawaii. It will benefit both employers and employees, in private sector and government jobs, that depend upon an economy recovering, not one worsening. It’s in everyone’s interests to participate, regardless of whether they employ those that will apply for U.S. visas.”
One main problem that Guam Employers Council’s Andrus anticipates is “people not participating.”
He, however, expressed concern with technology.
“We are doing this all online. All my technical advisers say this will work. I just have to see. But I am determined. I am not going to say ‘well I can’t do it.’”
If he sees discrepancies, Andrus said he will call the companies.
“I am trying to make it as easy as possible,” he says.
He also assured utmost confidentiality will be observed.
“All data that comes in will mainly go to me because of confidentiality,” he said.
An employer who declined to be named in this report told Variety that they are participating in the survey. “I need to protect my company by making sure prevailing wage rates are fair—not fair in the U.S., but in Saipan.”
As for the non-inclusion of workers defined as H-1, H-1B, H-2B or other temporary visa holders, the said employer said, “I don’t think of my bookkeeping staff that have been here 15 years as temporary visa holders. Who says they will not be permanent residents about the same time this survey gets done. I don’t think the U.S. even knows what to do about those here that have been here for so long.”
Alternatives
The regulations cited by Andrus during his presentation, 20 CFR Part 655 on wage methodology for the temporary non-agricultural employment, states that in geographic areas where the Occupational Employment Statistics does not gather data, including but not limited to the jurisdiction of the CNMI, and there is no collective bargaining agreement, Davis-Bacon Act or McNamara-O’Hara Service Contract Act wage available for the job opportunity, the National Processing Center will consider wage information in the form of a wage survey provided by an employer in making a prevailing determination.
The final regulations for H-2B workers to take effect on Jan. 1, 2012, also states that an employer may submit a written request to the administrator of Office of Foreign Labor Certification or OFLC to provide a private wage survey for OFLC to consider in making a prevailing wage determination.
This, however, must demonstrate that no collective bargaining agreement, Davis-Bacon Act, or Service Contract Act wage is available for the job opportunity; it’s not listed in the Dictionary of Occupational Titles and Standard Occupational Classification, among other things.
The regulations for H-2B also state that a labor certification from the Secretary is not required for H-2B employment on Guam. It, instead, requires employers seeking to bring in foreign labor to request and receive certification from the Governor of Guam as per 8 CFR 214.2 (h)(6) (iii).
Prevailing wage for H visa holders
According to the U.S. Departmetn of Labor website, OFLC will calculate the prevailing wage for non-agricultural (permanent, H-2B, H-1B, H-1B1, E-3) positions in the CNMI by following regulations with respect to the setting and calculation of wages in the CNMI as in all other jurisdictions subject to the Immigration and Nationality Act.
The Q&A’s issued by the department also stated that a collective bargaining agreement will set the wage if there is such an agreement currently in place. In the absence of a CBA, the employer may provide a survey which complies with the regulations 20 CFR 655.10 (for H-2B positions), 655.731 (for H-1B, H-1B1, E-3 positions), or 656.40 (for H-1B, H-1B1, E-3 or permanent positions) as appropriate for the visa classification.
It further states that if there’s no CBA , if employer does not provide a survey, or provides one noncompliant with regulatory standards, OFLC will issue a prevailing wage using Davis-Bacon Act or Service Contract Act as appropriate.
For locations other than the CNMI, the Office of Foreign Labor Certification uses Bureau of Labor Statistics’ Occupational Employment Statistics wage information.
