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Faith Forestry Services, Inc. v. United States Department of Labor

United States District Court, N.D. Mississippi, Aberdeen Division

March 19, 2018




         Now before the Court is the Plaintiff, Faith Forestry Services Inc.'s, Motion for Preliminary Injunction [4]. After reviewing all of the briefs and exhibits and after a hearing where both parties presented evidence and argument, the Court finds as follows:

         Faith Forestry employs forestry workers at worksites in several southeastern states. Some of Faith Forestry's work requires large numbers of workers on a seasonal basis. To meet the demand for workers, Faith Forestry regularly uses foreign workers employed through the H-2B visa program. Applying for H-2B worker visas is a multi-step process that requires some affirmative actions from Faith Forestry, i.e., advertising the open positions to domestic workers, and multiple decisions from government agencies including, Citizen and Immigration Services, the Department of Homeland Security, and the Department of Labor. As part of the visa process, the Department of Labor assembles and issues a “prevailing wage determination.” Faith Forestry must use this wage determination in various ways. Perhaps most importantly, the prevailing wage determination sets the minimum wage that Faith Forestry must pay its H-2B visa workers. The prevailing wage determination is based on numerous factors with geography as an important component. Thus, the prevailing wage determination issued to Faith Forestry is different for different worksites or locations.

         In April of 2017, Faith Forestry applied for approximately 700 H-2B visas for the upcoming tree-planting season, October 2017 through March 2018. Faith Forestry followed all the steps of the visa program, the Department of Labor issued prevailing wage determinations for all of Faith Forestry's worksites, the H-2B visas were issued, and Faith Forestry ultimately hired approximately 650 foreign workers.

         Faith Forestry then learned that some other companies that applied for H-2B visas after Faith Forestry were receiving different prevailing wage determinations for some worksites in Alabama. At least some of these lower wage determinations were “corrected” determinations issued by the Department of Labor. Apparently, the Department used some erroneous data when calculating wage determinations in September of 2017 for certain worksites. The Department issued “corrected” wage determinations, which changed the prevailing wage. Although Faith Forestry is focused on the worksites in Alabama where the “corrected” wage was lowered, it acknowledges that wage determinations for some locations increased based on the post-July 1 data.[1]

         Concerned that these lower determinations would give its competitors an unfair bidding advantage, Faith Forestry contacted the Department of Labor by email and requested that the Department lower Faith Forestry's wage determination for these worksites to match. The Department of Labor refused, stating that the wage determination was set based on the relevant data available at the time. Specifically, the Department stated that because Faith Forestry's application was determined before July 1, 2017, it used the labor data from the previous years that did not contain erroneous data.

         The end result here is that Faith Forestry is stuck with a different prevailing wage determination than some companies that applied later. Faith Forestry requests a preliminary injunction from this Court allowing it to pay its H-2B visa workers at particular worksites the “corrected” wage of $15.00 per hour. The wage determination issued to Faith Forestry for the worksites in question ranges from $19.71 to $26.08 per hour. Faith Forestry also requests that the Court enjoin the Department of Labor from pursuing an enforcement action against it until this case is ultimately resolved.

         At the hearing in this matter, Faith Forestry acknowledged it was not paying its H-2B visa workers, at the Alabama worksites in question, the prevailing wage issued by the Department and is instead paying them the $15.00 per hour wage that Faith Forestry argues is correct.

         Question Presented

         Faith Forestry is not challenging the validity of the initial wage determination. In other words, Faith Forestry does not argue that its original wage determination, based on the older data, was erroneous when issued. The Department asserts that it based Faith Forestry's wage determination on the data available at the time, that it has to update and implement new wage data on a regular basis to effectively administer the H-2B program, and it does so on July 1. Faith Forestry applied for the wage determination prior to July 1, so the Department used the wage data available at that time. Faith Forestry does not refute this assertion.

         Aggrieved that the new post-July 1 data was more favorable to employers at certain worksites, Faith Forestry is asking that it be permitted to use the newer wage determinations issued to other companies so that it can benefit from a lower determination. Although it asserts otherwise in its complaint, Faith Forestry now acknowledges that the wage determinations based on the new data actually increased wages at some worksites. Faith Forestry now concedes that, if granted relief, it will abide by all of the newer wage determinations, higher and lower.

         It is important to note that in its correspondence with the Department Faith Forestry only requested a “correction” of the wage determinations that were lower for certain worksites in Alabama. The Department merely responded that Faith Forestry's wage determination was based on the pre July 1 data. Faith Forestry did not request a review of its wage determination in its entirety. It is also important to note that when Faith Forestry made its email request to the Department to lower its wage determination, at least some of Faith Forestry's H-2B visa workers were already working.[2]

         The real question presented in this case is not whether the Department's initial wage determination is valid or whether the email response was arbitrary. The real question is whether the Department has the authority to update its wage data even if it could lead to similarly situated workers in the same market in the same season bringing home disparate paychecks, and if so, whether the Department exceeds its statutory authority by refusing to retroactively modify active wage determinations to reflect updates to its labor data set.[3]

         Preliminary ...

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