Last Update :5/6/2015

NCA Update on H-2B and WOTUS

The Washington Weekly Update

In an effort to keep you up to date on the actions taking place in Washington, here is your insider's brief from Capitol Hill—an informal update of what took place in D.C. over the past week.

The Other Shoes Drops on the H-2B Program

After a month of delays and a brief shutdown of the program, the Department of Labor (DOL) and the Department of Homeland Security (DHS) finally released the new operating rule for the H-2B visa program. Unfortunately, the rule overhauls the entire program—and not in a good way for private clubs. Most importantly, the rule goes into effect immediately and applies to H-2B workers currently at your club or those who will be at your club.

There are a significant number of new mandates under this rule, and clubs using the program should begin discussing the rule’s effects with their local counsel immediately. Some specific areas of great concern include:

• The rule establishes a “corresponding employment” requirement. This requires clubs to increase a U.S. worker’s wages to the H-2B prevailing wage if that worker does “substantially the same work” as an H-2B worker.
   
• The rule mandates that clubs must now provide a guaranteed number of hours and pay to their H-2B employees. Specifically, clubs must pay their H-2B workers (and their corresponding employment workers) 75% of their hours during a 12-week period—even if they do not work due to inclement weather or other unforeseen circumstances.
   
• The rule changes the number of hours an H-2B worker must work from 30 to 35 hours per week.
   
• The rule requires clubs to pay all transportation, visa, food, and lodging costs for their H-2B workers (and all U.S. workers coming from another location within the U.S.) as they travel from their hometown, to their home country’s consular city, to the club and then home again.
   
• The rule requires clubs to recruit U.S. workers by: contacting all former workers who worked at the club within the last year (other than those fired for cause), contacting the union (if a union club), and by posting a notice of the job openings for 15 consecutive business days in two conspicuous places throughout the club (it may also be posted online)
   
• The rule mandates that recruitment for U.S. workers begin within 14 calendar days from the date a club receives its labor certification and that clubs must continue to hire U.S. workers up to 21 days before their H-2B workers start.
   
• The rule requires clubs to hang an “Employee Rights” poster issued by DOL. To print the required poster, please click here.

This new rule is in addition to an H-2B Wage Rule that has also gone into effect which includes a higher prevailing wage determination process. Taken together, these two rules will place a tremendous burden on clubs that utilize the H-2B visa program. For additional information on the two rules, please click here.

We are actively working with our allies on the H-2B Workforce Coalition and on Capitol Hill to stop this rule, but it may be a difficult task. Congressional action will take months to complete and there is little chance the president will sign it. Removing funding for the rule is also another option, but that would only occur in FY16 and it will still require the president to sign off.

If action in Congress cannot fix this problem, we will likely file a lawsuit to stop the rule; however, there is a risk pursuing a legal remedy. Should we succeed in getting the rule stayed, DOL and DHS have indicated they will have to stop the entire program for lack of a valid set of operating regulations. As such, our options are limited but we will pursue all avenues to relieve the pressure clubs are feeling under this new rule.

The Senate Bill to Stop the WOTUS Rule

With the House bill to stop the Environmental Protection Agency’s (EPA) Waters of the U.S. (WOTUS) Rule introduced last week, the Senate needed to act as well. Last Thursday, Sen. John Barrasso (R-Wyo.) and Sen. Joe Donnelly (D-Ind.) did just that by introducing the Federal Water Quality Protection Act.

The bill will stop the rule and send it back to EPA for a rewrite. Not only does it require EPA to rewrite the rule, but it also sets out principles to be followed during that rewrite. Those principles indicate that things like lakes and isolated ponds (occasionally found at clubs) should not be considered waters of the U.S.

In addition, the bill sets out a timeframe for the review and reissuance of the rule that includes six months of consultation with stakeholders and a four-month comment period. Any final rule must be issued no later than December 31, 2016. This date was set by the Democrats on the bill who wanted the rule issued before the president’s term ended....

Speaking of the Democrats on the bill, we have secured three prominent legislators as co-sponsors. Aside from Sen. Donnelly, Sens. Heidi Heitkamp (D-N.D.) and Joe Manchin (D-W.Va.) have joined the bill making it one of the more bipartisan bills introduced this year. With their names on the bill, Senate Republicans only need three more Democrats to reach the 60-vote threshold to avoid a filibuster—something Senate leaders have said is necessary to receive floor time and a vote.

With the House bill scheduled for a vote next Tuesday or Wednesday, my colleagues and I on the Waters Advocacy Coalition will be working to secure additional support to push the Senate bill over that 60 number. With luck, we’ll have a vote in the Senate sooner rather than later.

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