CA3 Upholds 2011 H-2B Wage Rule: Louisiana Forestry v. DOL

"Appellants, a group of associations representing employers in non-agricultural industries, claim that the Department of Labor exceeded its authority by enacting a regulation governing the calculation of the minimum wage a U.S. employer must offer in order to recruit foreign workers under the H-2B visa program. The District Court granted summary judgment for the Department of Labor and its co-defendants, the Secretary of Labor, the Department of Homeland Security, and the Secretary of Homeland Security. Having concluded that the regulation was validly promulgated, we affirm the judgment of the District Court." - Louisiana Forestry v. DOL, Feb. 5, 2014.

[But see fn17: "We acknowledge that the decision we reach today is a difficult one, especially because the result we reach may potentially create a split between our Court and the Eleventh Circuit. In a recent review of a preliminary injunction of the 2011 Wage Rule, the Eleventh Circuit rejected the DOL’s argument that it has rulemaking authority in the context of the H-2B program pursuant to a lawful conditioning by DHS of its authority to grant or deny H-2B visa petitions. See Bayou Lawn & Landscape Servs. v. Sec. of Labor, 713 F.3d 1080 (11th Cir. 2013)."]