PLANET Suing Department of Labor

Suit looks to stop implementation of H-2B wage increases proposed by DOL that are scheduled to take effect September 30.

The Professional Landcare Network (PLANET) recently filed suit in federal court to stop the implementation of wage increases proposed by the U.S. Department of Labor (DOL) for certain foreign workers. The new regulation specifies a 40% to 50% wage increase for all H-2B holders and would take effect September 30, 2011. 

The first goal of this legal action is to obtain a temporary restraining order to block the rule from taking effect on September 30. If that effort is successful, then a preliminary injunction request will be sought.

The case, Professional Landcare Network et al v. Solis, was brought by several program users, including PLANET members and several other national organizations, who believe H-2B program workers do not “take” jobs from Americans who want them but rather take the jobs American workers have left vacant. The lawsuit argues that the DOL violated the Administrative Procedure Act (APA) and the Regulatory Flexibility Act by issuing this regulation without going through what is termed “notice and comment” rulemaking. In declaration filed as part of the suit, PLANET CEO Sabeena Hickman outlines the irreparable harm that the rule would place on PLANET members who use the H-2B Program.

According to PLANET President Gerald J. Grossi, Landscape Industry Certified Technician, “The H-2B employee has been the backbone of our members’ and the American workforce for many years. If this regulation is not stopped, the H-2B program will cease to be an option, and without these workers, our industry cannot survive. PLANET has to take a leadership role as a plaintiff in this case because it is so important for our members and the industry in these harsh economic times to have the workforce necessary to fulfill their commitment to their customers.”

Many of PLANET’s members who use the H-2B program report that they have recently received supplemental prevailing wage determinations that range from a low of $1.90 per hour to a high of $7.01 per hour. At the low end, that results in a 20.3% increase in hourly wage cost and, at the high end, a 78.1% increase in hourly wage costs. The average increase in hourly wage costs is 40%.

The Final Rule, with its accelerated implementation date, will stunt, if not reverse, the growth of PLANET’s H-2B members’ businesses and the career opportunities of their year-round, U.S. workers

The H-2B worker program was created in 1987 as amendments to the Immigration and Nationality Act. It provides nonimmigrant alien labor for nonagricultural employers in the United States when U.S. workers are putatively not available.

The national scope of this wage increase and its impact on entire industries is evinced by the fact that these other plaintiffs have joined PLANET in this suit. The other plaintiffs include PLANET members ArtisTree Landscape Maintenance & Design, National Hispanic Landscape Alliance, Ohio Landscape Association, Inc., U.S. Lawns of West and St. Charles County and others including Bayou Lawn & Landscape Services, Lake Cowart Seafood Corporation and the New York Thoroughbred Horsemen’s Association.