U.S. DEPARTMENT OF LABOR
Employment and Training Administration
Washington, D. C. 20210

CLASSIFICATION

ES

CORRESPONDENCE SYMBOL

DFLC

ISSUE DATE

April 23, 1999

RESCISSIONS

GAL 2-98, Change 1

EXPIRATION DATE

April 30, 2001

 

DIRECTIVE

:

GENERAL ADMINISTRATION LETTER NO. 02-99

 

TO

:

ALL STATE EMPLOYMENT SECURITY AGENCIES

 

FROM

:

DAVID HENSON
Director
Office of Regional Management

 

SUBJECT

:

Availability and Use of Occupational Employment Statistics Survey Data for Alien Labor Certification Prevailing Wage Purposes

 

  1. Purpose. To make State staff aware of the availability of new Occupational Employment Statistics Survey (OES) data and to provide information on how it is to be used in light of the changes to prevailing wage determination practices as promulgated by the recently passed American Competitiveness and Workforce Improvement Act (ACWIA). This new wage database will be referred to as the EDC Wage Database.

  2. References. 20 CFR part 655, subpart A; 20 CFR part 655, subparts H and I; 20 CFR part 656; Technical Assistance Guide (TAG) No. 656 Labor Certifications; General Administration Letter (GAL) 2-98, Prevailing Wage Policy for Nonagricultural Immigration Programs; and GAL 2-98, Change 1, Prevailing Wage Policy for Researchers Employed by Colleges and Universities, College and University Operated Federally Funded Research and Development Centers, and Certain Federal Agencies.

  3. Background.  The Bureau of Labor Statistics' regional offices have recently provided new data files to Employment Security Agencies which contain the updated OES data. The State is to use this data in making prevailing wage determinations during Calendar Year 1999. This year there are two data sets. One set is composed of the ALC__97f.dbf and *.dat files and is referred to as the "ALC" database. These files will be used to determine prevailing wages for occupations in most industries. The second set is composed of the EDC__97f.dbf and *.dat files and is referred to as the "EDC" database. These files are to be used to determine prevailing wages in industries identified in ACWIA, as discussed below. These data sets should be used for making prevailing wage determinations immediately upon receipt.

    This year's data are the second year of OES estimates and have been developed using both 1996 and 1997 survey data that, when combined, cover approximately 800,000 sample units. As expected, wages for use in 1999 differ from those used in 1998. One of the results of the new sample is that the number of occupation/location cells whose data is based on data only obtained within the specific location has more than doubled from last year. Fewer cells must show national or State data because of the inability to obtain a sample resulting in publishable data for that cell.

    The recently enacted ACWIA, which increased the H-1B quota and made other changes to the program, also included a change for the calculation of prevailing wages in all labor certification programs for all occupations in specific types of employers. The ACWIA states: "Section 212 (8 U.S.C.1182) is amended by adding at the end the following:

    Attached to this GAL is the definition of "an institution of higher education" found in the Higher Education Act of 1965 (HEA). Any institution meeting this definition is to be provided a prevailing wage determined by using the "EDC" database (unless an approvable employer provided survey is offered). An institution which can show evidence (e.g., a charter) that they are a nonprofit entity either related to or affiliated with an institution of higher education as defined in the HEA is also to use the "EDC" database. Institutions that can offer evidence of being a nonprofit research organization (e.g., recognition by IRS of nonprofit status) or a Governmental research organization are also to be provided prevailing wages based on the EDC database (unless an approvable employer provided survey is offered).

    The new law went beyond the recently published regulations referring to "researchers" in colleges and universities and selected research facilities. The ACWIA indicates that all occupations in institutions of higher education, a related or affiliated nonprofit entity, nonprofit research organization, or governmental research agency, should be provided prevailing wages using the "EDC" database or use the prevailing wage based on a sample of similar institutions.

  4. Use of OES data. The OES wages in the "ALC" database from BLS are to be used to determine prevailing wages except: a) where a Davis-Bacon wage, an SCA wage, or a contract wage takes precedence, as outlined in GAL 2-98; and b) where the occupation is in an industry described under ACWIA.

    The OES survey collected wage data on occupations found in institutions of higher education (SIC 822). This is the "EDC" database (files listed as EDC__97.dbf and *.dat). The "EDC" database is to be used to determine the prevailing wage for occupations in organizations identified in ACWIA above, (institutions of higher education, a related or affiliated nonprofit entity, nonprofit research organization, or governmental research agency).

    The Davis-Bacon and Service Contract Act wages are not to be used as the prevailing wage for occupations in organizations identified in ACWIA because of the specific wording in the Act regarding the way in which prevailing wages are to be determined for these organizations. However, if a negotiated union agreement exists for the requested job in the facility where the job is being requested, the negotiated wage is to be used as the prevailing wage.

    The provisions of GAL 2-98 continue to apply to the process of providing Level One and Level Two as the appropriate prevailing wage for the requested occupation. Also applicable is the process described under GAL 2-98, Section J, Use of Employer-Provided Published Wage Surveys or Employer-Conducted Surveys. For occupations in organizations which were identified in ACWIA, employer provided or conducted surveys must meet the criteria under GAL 2-98, Section J, except that criterion (5) will not apply. Instead, such surveys, in order to be acceptable, must include a representative sample of the occupation in similar institutions as required in the ACWIA.

    We are currently discussing with BLS the possibility of obtaining wage data for "Governmental research organizations". Although BLS has data from OPM on Federal wages, we must determine if we can extract from that data those wages paid in organizations where the primary function is research. Until that information can be provided, the EDC database should be used to provide prevailing wage determinations in these organizations as well.

    For users of ALCATS, that computer program has been revised to allow the user to select the use of the ALC or EDC database, as appropriate. The application is available to down load from the following internet site: http://edc.dws.state.ut.us/alcats21.htm. State Agency staff that would like to obtain a CD containing the application may obtain it either by using the order form available at that site, or by calling Gary Ray at 801-526-9455.

  5. Action Required. State Administrators are requested to:

    1. Provide this guidance to appropriate staff.

    2. Ensure that the State OES coordinator has provided the 1997 Occupational Employment Statistics Survey to staff responsible for making prevailing wage determinations under the nonagricultural Alien Labor Certification programs.

    3. Ensure that state staff start using these data for determining prevailing wages immediately upon receipt o the data.

    4. Inquiries. Inquiries regarding this GAL should be addressed to your Regional Office.

    5. Attachment. Definition of "institution of higher education" from the Higher Education Act of 1965.