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Content Last Revised: 04/01/2005 |
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Code of Federal Regulations Pertaining to ETA |
| Employees' Benefits |
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| Employment and Training Administration, Department of Labor |
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| Labor Certification Process for Permanent Employment of Aliens In the United States |
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| Determination of Prevailing Wage |
20 CFR 656.40 - Determination of prevailing wage for labor certification purposes.
- Section Number: 656.40
- Section Name: Determination of prevailing wage for labor certification purposes.
(a) Application process. The employer must request a prevailing wage
determination from the SWA having jurisdiction over the proposed area of
intended employment. The SWA must enter its wage determination on the
form it uses and return the form with its endorsement to the employer.
Unless the employer chooses to appeal the SWA's prevailing wage
determination under Sec. 656.41(a), it files the Application for
Permanent Employment Certification either electronically or by mail with
an ETA application processing center and maintains the SWA PWD in its
files. The determination shall be submitted to an ETA application
processing center in the event it is requested in the course of an
audit.
(b) Determinations. The SWA determines the prevailing wage as
follows:
(1) Except as provided in paragraphs (e) and (f) of this section, if
the job opportunity is covered by a collective bargaining agreement
(CBA) that was negotiated at arms-length between the union and the
employer, the wage rate set forth in the CBA agreement is considered as
not adversely affecting the wages of U.S. workers similarly employed,
that is, it is considered the ``prevailing wage'' for labor
certification purposes.
(2) If the job opportunity is not covered by a CBA, the prevailing
wage for labor certification purposes shall be the arithmetic mean,
except as provided in paragraph (b)(3) of this section, of the wages of
workers similarly employed in the area of intended employment. The wage
component of the DOL Occupational Employment Statistics Survey shall be
used to determine the arithmetic mean, unless the employer provides an
acceptable survey under paragraph (g) of this section.
[[Page 706]]
(3) If the employer provides a survey acceptable under paragraph (g)
of this section that provides a median and does not provide an
arithmetic mean, the prevailing wage applicable to the employer's job
opportunity shall be the median of the wages of workers similarly
employed in the area of intended employment.
(4) The employer may utilize a current wage determination in the
area under the Davis-Bacon Act, 40 U.S.C. 276a et seq., 29 CFR part 1,
or the McNamara-O'Hara Service Contract Act, 41 U.S.C. 351 et seq.
(c) Validity period. The SWA must specify the validity period of the
prevailing wage, which in no event may be less than 90 days or more than
1 year from the determination date. To use a SWA PWD, employers must
file their applications or begin the recruitment required by Sec. Sec.
656.17(d) or 656.21 within the validity period specified by the SWA.
(d) Similarly employed. For purposes of this section, similarly
employed means having substantially comparable jobs in the occupational
category in the area of intended employment, except that, if a
representative sample of workers in the occupational category can not be
obtained in the area of intended employment, similarly employed means:
(1) Having jobs requiring a substantially similar level of skills
within the area of intended employment; or
(2) If there are no substantially comparable jobs in the area of
intended employment, having substantially comparable jobs with employers
outside of the area of intended employment.
(e) Institutions of higher education and research entities. In
computing the prevailing wage for a job opportunity in an occupational
classification in an area of intended employment for an employee of an
institution of higher education, or an affiliated or related nonprofit
entity, a nonprofit research organization, or a Governmental research
organization, the prevailing wage level takes into account the wage
levels of employees only at such institutions and organizations in the
area of intended employment.
(1) The organizations listed in this paragraph (e) are defined as
follows:
(i) Institution of higher education means an institution of higher
education as defined in section 101(a) of the Higher Education Act of
1965. Section 101(a) of that Act, 20 U.S.C. 1001(a)(2000), provides an
institution of higher education is an educational institution in any
state that:
(A) Admits as regular students only persons having a certificate of
graduation from a school providing secondary education, or the
recognized equivalent of such a certificate;
(B) Is legally authorized within such state to provide a program of
education beyond secondary education;
(C) Provides an educational program for which the institution awards
a bachelor's degree or provides not less than a two-year program that is
acceptable for full credit toward such a degree;
(D) Is a public or other nonprofit institution; and
(E) Is accredited by a nationally recognized accrediting agency or
association or, if not so accredited, is an institution that has been
granted preaccreditation status by such an agency or association that
has been recognized by the Secretary of Education for the granting of
preaccreditation status, and the Secretary of Education has determined
there is satisfactory assurance the institution will meet the
accreditation standards of such an agency or association within a
reasonable time.
(ii) Affiliated or related nonprofit entity means a nonprofit entity
(including but not limited to a hospital and a medical or research
institution) connected or associated with an institution of higher
education, through shared ownership or control by the same board or
federation, operated by an institution of higher education, or attached
to an institution of higher education as a member, branch, cooperative,
or subsidiary.
(iii) Nonprofit research organization or Governmental research
organization means a research organization that is either a nonprofit
organization or entity primarily engaged in basic research and/or
applied research, or a United States Government entity whose primary
mission is the performance or
[[Page 707]]
promotion of basic research and/or applied research. Basic research is
general research to gain more comprehensive knowledge or understanding
of the subject under study, without specific applications in mind. Basic
research is also research that advances scientific knowledge, but does
not have specific immediate commercial objectives although it may be in
fields of present or commercial interest. It may include research and
investigation in the sciences, social sciences, or humanities. Applied
research is research to gain knowledge or understanding to determine the
means by which a specific, recognized need may be met. Applied research
includes investigations oriented to discovering new scientific knowledge
that has specific commercial objectives with respect to products,
processes, or services. It may include research and investigation in the
sciences, social sciences, or humanities.
(2) Nonprofit organization or entity, for the purpose of this
paragraph (e), means an organization qualified as a tax exempt
organization under the Internal Revenue Code of 1986, section 501(c)(3),
(c)(4), or (c)(6) (26 U.S.C. 501(c)(3), (c)(4) or (c)(6)), and which has
received approval as a tax exempt organization from the Internal Revenue
Service, as it relates to research or educational purposes.
(f) Professional athletes. In computing the prevailing wage for a
professional athlete (defined in Section 212(a)(5)(A)(iii)(II) of the
Act) when the job opportunity is covered by professional sports league
rules or regulations, the wage set forth in those rules or regulations
is considered the prevailing wage (see Section 212(p)(2) of the Act).
INA Section 212(a)(5)(A)(iii)(II), 8 U.S.C. 1182(a)(5)(A)(iii)(II)
(1999), defines ``professional athlete'' as an individual who is
employed as an athlete by--
(1) A team that is a member of an association of six or more
professional sports teams whose total combined revenues exceed
$10,000,000 per year, if the association governs the conduct of its
members and regulates the contests and exhibitions in which its member
teams regularly engage; or
(2) Any minor league team that is affiliated with such an
association.
(g) Employer-provided wage information. (1) If the job opportunity
is not covered by a CBA, or by a professional sports league's rules or
regulations, the SWA must consider wage information provided by the
employer in making a prevailing wage determination. An employer survey
can be submitted either initially or after SWA issuance of a prevailing
wage determination derived from the OES survey. In the latter situation,
the new employer survey submission will be deemed a new prevailing wage
determination request.
(2) In each case where the employer submits a survey or other wage
data for which it seeks acceptance, the employer must provide the SWA
with enough information about the survey methodology, including such
items as sample size and source, sample selection procedures, and survey
job descriptions, to allow the SWA to make a determination about the
adequacy of the data provided and validity of the statistical
methodology used in conducting the survey in accordance with guidance
issued by the ETA national office.
(3) The survey submitted to the SWA must be based upon recently
collected data:
(i) A published survey must have been published within 24 months of
the date of submission to the SWA, must be the most current edition of
the survey, and the data upon which the survey is based must have been
collected within 24 months of the publication date of the survey.
(ii) A survey conducted by the employer must be based on data
collected within 24 months of the date it is submitted to the SWA.
(4) If the employer-provided survey is found not to be acceptable,
the SWA must inform the employer in writing of the reasons the survey
was not accepted.
(5) The employer, after receiving notification that the survey it
provided for the SWA's consideration is not acceptable, may file
supplemental information as provided in paragraph (h) of this section,
file a new request for a prevailing wage determination, or appeal under
Sec. 656.41.
[[Page 708]]
(h) Submittal of supplemental information by employer. (1) If the
employer disagrees with the skill level assigned to its job opportunity,
or if the SWA informs the employer its survey is not acceptable, or if
there are other legitimate bases for such a review, the employer may
submit supplemental information to the SWA.
(2) The SWA must consider one supplemental submission about the
employer's survey or the skill level the SWA assigned to the job
opportunity or any other legitimate basis for the employer to request
such a review. If the SWA does not accept the employer's survey after
considering the supplemental information, or affirms its determination
concerning the skill level, it must inform the employer of the reasons
for its decision.
(3) The employer may then apply for a new wage determination or
appeal under Sec. 656.41.
(i) Wage can not be lower than required by any other law. No
prevailing wage determination for labor certification purposes made
under this section permits an employer to pay a wage lower than the
highest wage required by any applicable Federal, state, or local law.
(j) Fees prohibited. No SWA or SWA employee may charge a fee in
connection with the filing of a request for a PWD, responding to such a
request, or responding to a request for a review of a SWA prevailing
wage determination under Sec. 656.41.
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