Recently, the Labor Department (DOL) has announced an expected Prevailing Wage Rule delay. Consequently, the DOL has pushed back the original effective date of the Final Rule an additional 18 months. The original Final Rule focused on calculating prevailing wages of certain immigrants and non-immigrant workers. The news release follows the Department of Labor’s (DOL’s) announcement that it was withdrawing the Independent Contractor final rule.

Overview of the Final Rule

On January 14th, 2021, the DOL adopted a Final Rule that amended prevailing wages that employers could pay foreign workers. The agency adopted the rule in the final days of the Donald J. Trump administration. The positions included in the Final Rule could be on a permanent or temporary basis. Namely, hiring the workers would most likely occur through employment-based immigrant visas or H-1B, H-1B1, or E-3 non-immigrant visas.  In totality, the primary purpose of the Final Rule was to update the computation of prevailing wage levels.  More specifically, such calculations would better reflect the actual wages earned by U.S. workers compared to wages earned by foreign workers. However, the comparison between U.S. workers and foreign workers would only occur if in similar job roles and positions. The Final Rule had an original effective date of March 15th, 2021, with adjusted wage levels beginning July 1st, 2021.

On February 1st, 2021, the DOL (now under the Joseph R. Biden administration) published a notice of proposed rulemaking (NPRM).  As a result, that NPRM delayed the Final Rule’s effective date for 60 days from March 15 to May 14th, 2021. On March 12th, 2021, the DOL adopted the proposal and delayed the date of the Final Rule to May 14.

New Prevailing Wage Rule Delay

In the May 13 announcement, the DOL stated that the Final Rule will now go into effect on November 14th, 2022. Subsequently, the delay will provide the department with sufficient time to thoroughly consider the final rule’s legal and policy issues. The DOL will also use the Prevailing Wage Rule delay to review public comments received from a Request for Information. That April 2nd, 2021, Request for Information gathered information about potential sources and methods for determining prevailing wage levels.

 The delay will also give agency officials sufficient time to:

  • compute and validate prevailing wage data covering specific occupations and geographic areas;
  • complete necessary system modifications; and
  • conduct public outreach.