LCA Wage Regulations - A Can of Worms for the Employer to Open

Introduction

On December 20, 1994, the Department of Labor (DOL) published final regulations governing labor condition applications (LCAs) for employers of H-1B nonimmigrant workers.3 The rule, which took effect January 19, 1995, has generated a flurry of activity. Attorneys have analyzed the rule's most controversial provisions, speculating on how they will be applied.4 DOL representatives have spoken at several conferences to clarify the Department's position,5 and the DOL's Administrator for Regional Management, Barbara Ann Farmer, has released two important memos on prevailing wage issues.6 The National Association of Manufacturers has filed a lawsuit against the DOL, challenging the validity of the new rule.7

Other recent events could also affect the interpretation of the final rule. Congress has set out to tinker with the LCA process, by way of H.R. 2202, a comprehensive reform bill now pending in the House of Representatives.8 The DOL Inspector General is auditing the LCA program.9 Moreover, the Commission on Immigration Reform (Jordan Commission) has issued recommendations on legal immigration10 may have an impact on how the H-1B program ultimately takes shape.

All of these factors could mean significant changes are in store in the future for the LCA program. The purpose of this article is to look at questions raised by the final rule's treatment of wages. The wage that an employer is required to pay to an H-1B worker has been a central issue throughout the LCA program's history and remains so under the final rule. It has received intense scrutiny by employers and the immigration bar.11

Two central questions remain, however, that warrant further attention: (1) how must a prevailing wage survey be performed and its source identified on the LCA? and (2) how should the actual wage be established?

Background

Congress made the LCA a part of the H-1B (specialty occupation) petition process in 1990 in order to protect U.S. workers.12 Before an employer may file an H-1B petition with the Immigration and Naturalization Service, it must first have its LCA certified by the DOL's Employment and Training Administration (ETA). Responsibility at the DOL for the LCA program is split between the ETA and the Wage and Hour Division of the Employment Standards Administration (WHD). The ETA accepts the LCAs for filing and certification, reviewing them only for completeness and obvious inaccuracies.13

The final rule, like the interim rule, was published as a joint rule of the ETA and the WHD, i.e., simultaneously as 20 C.F.R. Part 655 (ETA) and 29 C.F.R. Part 507 (WHD). For convenience' sake, all references to the final rule are to 20 C.F.R. Part 655. The WHD enforces the LCA regime through acceptance of complaints, investigations and assessment of penalties and other remedies.14 An interim rule, issued on January 13, 1992 and effective retroactively, governed the LCA program from October 1, 1991 to January 19, 1995, when the final rule took effect.15

The idea behind the LCA is simple enough: to protect U.S. workers' wages and working conditions from imported foreign labor. Congress and the Department of Labor have struggled with how to translate this principle into a workable and enforceable regime. The result has been a system in which just about any employer can get an LCA certified by the ETA but even the most conscientious cannot know for sure what to expect from a WHD audit, other than a close look at the wage paid.16

The WHD's Field Operations Handbook and administrative decisions on LCA enforcement actions are not published for the public; nor are they especially rich in guidance for employers. For an analysis of LCA decisions, see Carl M. Shusterman and David L. Neal, Survey and Analysis of H-1B Labor Condition Application Decisions, 72 Interpreter Releases 49 (January 9, 1995); see also discussion below.

The LCA form can look innocuous to the uninitiated: just fill in the blanks, check off some boxes, sign it and send it to the Labor Department. In fact, by signing the LCA, the employer promises that: (1) it won't pay the H-1B employee a below-market wage; (2) it will notify its workers of the H-1B employment; (3) it won't subject the H-1B employee to sub-standard working conditions; (4) it won't hire the H-1B employee to break a strike or otherwise help the employer during a labor dispute; and (5) it will keep detailed records of its compliance.

Of all these promises, perhaps the most difficult is establishing and documenting that the H-1B wages match what the DOL considers to be the going rate, called the "required wage." The "required wage" is defined in the regulations as the higher of the "prevailing wage" in the geographic area and the "actual wage" at the worksite. In other words, the regulations ensure that an H-1B employer won't undercut its competitors (because it must pay the prevailing wage). At the same time, an employer already paying premium wages to its work force must pay those same premium wages - aka "actual wage" - to its H-1B workers.

The regulatory implementation of the required wage, however straightforward it may seem at first glance, is actually a mire; the mechanics of properly establishing and documenting the prevailing and actual wages can be complex and time-consuming.

Prevailing Wage 17

To its credit, the DOL has attempted to clarify some of the important wage issues contained in the final rule. Barbara Ann Farmer, DOL's Administrator for Regional Management, has issued two memos on the prevailing wage since the final rule became effective. One has taken some guesswork out of completing the LCA form. The other, which requires strict adherence to the regulations, has gummed up wage determinations by the State Employment Security Agencies, or SESAs.

Farmer Memo of February 21, 1995

Unlike the 1992 interim rule, the final rule requires that the amount and source of the prevailing wage be included on the LCA.18 Therefore, before certifying the LCA, the ETA must now determine whether the prevailing wage source, like the rest of the LCA, is complete and accurate. This raised concerns about the ETA's judgment of which non-SESA wage surveys would be so "obviously" inaccurate as to warrant rejection of the LCA.19 (SESA determinations, which provide a safe harbor to the employer, are presumed to be accurate.) Farmer's first memo, of February 21, 1995, is meant to address these concerns.20

The memo is valuable primarily because of its examples of acceptable sources of prevailing wage data. The only example given by the final rule is a published survey identified by name.21 The Farmer memo expands this list, naming specific sources like Bureau of Labor Statistics and National Association of Manufacturers. Moreover, where the employer is the source of the wage data, merely indicating the employer's name or "employer's survey" is enough to pass muster. On the other hand, "market data," "published survey" or "internal data" will result in rejection of the LCA. The difference between "employer's survey" and "internal data" appears slight enough that the ETA may later revise its list.

Despite the seemingly liberal language of this Farmer memo, ETA regional offices still reject LCAs for "obviously" inadequate wage source information. Lesser-known published wage surveys, surveys conducted by an outside human resources consultant hired by the employer, and other alternative sources may not be recognized by the ETA examiners. One ETA regional office has recommended that the wage source on the LCA include the word "survey" to avoid rejection of the LCA.22

This Farmer memo may also be valuable for the light it sheds on potential prevailing wage issues as they arise in WHD enforcement proceedings. The memo addresses only how the ETA should review an LCA for certification. However, Farmer may have also tipped the DOL's hand on enforcement priorities: the WHD may be "looking behind the listed source" to issues of survey methodology and scope. This worries some employers and their lawyers, who do not want to invite a WHD investigation by using a non-SESA survey.23

Will a non-SESA wage source be a red flag for WHD to initiate an investigation? It is too early to tell. Administrative LCA decisions have not yet been rendered that interpret the final rule, and decisions on the interim rule offer only sketchy fact patterns and have not articulated deficiencies in any survey's methodology or scope.24

See generally Carl M. Shusterman and David L. Neal, Survey and Analysis of H-1B Labor Condition Application Decisions, 72 Interpreter Releases 49 (January 9, 1995). Of 32 cases discussed by Shusterman and Neal, 14 indicated some inadequacy in the prevailing wage data or documentation. These included, in addition to the cases above: Wage and Hour Division, DOL v. Rehab One, Inc. dba First Therapy, 93-LCA-8 (August 11, 1994, Washington, D.C.); City of Lakes Waldorf School, no case number (December 17, 1993, Minneapolis, Minnesota); James T. Lewis & Associates/Amerisoft, Inc., no case number (March 26, 1993, Chagrin Falls, Ohio); Grand Network Investment, Inc., no case number (December 20, 1993, San Francisco, California); The Korea Society, no case number (June 10, 1994, New York, New York); Wage and Hour Division, DOL v. R.S. Property Management Company, 94-LCA-3 (June 22, 1994, Los Angeles, California); Surekha Enterprises, Inc. dba Omnisys, no case number (July 14, 1994, Louisville, Kentucky); Nikko Securities Co., no case number (July 15, 1994, New York, New York); Analysts International Corporation, no case number (July 21, 1994, Minneapolis, Minnesota).

LCA decisions are not published; they are only available through a Freedom of Information Act request. WHD will, however, provide a summary of LCA decisions without a formal FOIA request. In any case, where a SESA determination is not forthcoming or is inaccurate, the employer may have no choice but to rely on alternative wage sources.

General Administration Letter No. 4-95

On May 18, 1995, Ms. Farmer issued her second memo, General Administration Letter (or GAL) No. 4-95,25 to all SESAs. This memo has wreaked havoc among SESAs and has resulted in substantial delays in the issuance of prevailing wage determinations. The GAL supplements the DOL's Technical Assistance Guide (TAG).26

GAL No. 4-95 is a continuation of the DOL's efforts, begun in 1994, to make the SESA wage determinations more rational and consistent.27 In November 1994, representatives of the SESAs met in San Francisco with the DOL to receive training and guidance.28 GAL No. 4-95 was issued in anticipation of the next SESA conference, held in July in Reno, Nevada. Sometime after GAL No. 4-95, the DOL issued an Employment Service Program Letter to all SESAs, that provides answers to 149 questions raised at the San Francisco training session in November 1994 (92 questions on general case processing and 57 questions on prevailing wage).29

As GAL No. 4-95 points out, two elements make up the prevailing wage: the job and the location. GAL No. 4-95 devotes more space to the more complex of the two: the definition of the job. The nature of the duties, the level of skill, the existence of separate wage systems of various employers, and the determination of what constitutes "substantially similar" employment are all discussed in the GAL. The DOL's instructions on defining the job, in particular, its binary classification of experience for the job - entry-level or experienced, has worried lawyers about the effect of such an instruction on the accuracy of SESA wage determinations.30 As a practical matter, however, the GAL's limitations on geographic scope of a wage survey have wreaked more havoc at the SESAs.

Published wage surveys are generally the quickest, the most economical, and often the most accurate source of wage data. The DOL acknowledged as early as October 199431 the difficulty in obtaining published wage surveys and other wage data that are limited to the "area of intended employment" in accordance with the regulations.32 A common problem is that published wage surveys provide only state-wide or regional data. And surveys limited to a single city are often available only for larger metropolitan areas. More recently, the DOL also acknowledged that the SESAs and its own Regional Offices have had difficulty interpreting and applying DOL regulations and policies accurately and consistently.33 Despite full knowledge of these problems, the DOL issued its final rule in December 1994 without changing the substance of its definition of "area of intended employment" or otherwise ameliorating the SESAs' difficulty. In order to provide guidance "until planned regulatory changes34 can be made," it then issued GAL No. 4-95.

Some SESAs did not begin implementing GAL No. 4-95 until after the July 1995 meeting in Reno, Nevada.35 At least two states, Florida and Maryland, have thrown out their published wage surveys and stopped issuing wage determinations until they can develop wage information in accordance with GAL No. 4-95. They have indicated a processing time of at least 45 days; longer processing times are to be expected. There seems to be no impact on the wage determinations for New York City, perhaps because published wage surveys are readily available for that metropolitan area.

The delay in SESA determinations in certain states since July is disturbing. There, employers seeking the safe harbor of a SESA determination must either delay the H-1B petition or be willing to match the SESA wage with back-pay once the SESA makes its determination.

GAL No. 4-95, however, is likely to have a greater impact on WHD's treatment of non-SESA surveys. GAL No. 4-95 calls for strict adherence to the language of the LCA regulations. The final rule, like the interim rule, sets out specific criteria for non-SESA wage surveys.36 Chiefly, non-SESA wage sources, whether published or not, must reflect the wage paid to comparable workers within commuting distance of the employer's worksite. Because the DOL is insisting that SESAs apply this regulation literally, there is every reason to believe that it will also expect employers to do the same.

Employers can find little comfort relying on a survey that doesn't quite meet the specific criteria listed in the regulations. INA [[section]] 212(n)(1)(A)(i) requires that the wage level - both actual and prevailing - be based on "the best information available as of the time of filing the application." Congress, by inserting the "best information available" language into the statute via the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA),37 intended to make the wage formula less "rigid," clarifying that the statute mandated no specific wage source.38

Despite Congress's intent, the DOL has stayed tough. In its regulations, it implies that "best available" is a further substantive requirement, one that mandates a preference for SESA determinations.39 The regulations go on to set a high standard for best available information: only if there are no comparable jobs in the geographic area of employment may a survey validly canvass a larger or different area.40 Although DOL representatives have offered this "best available" option where a valid survey is not available,41 the regulations render this option unattractive, if not useless. How do employers show that there are no comparable jobs nearby or that theirs is otherwise the best available information? This may be an impossible task.

Any less care could be risky to the employer if WHD ever investigates. WHD could throw out the prevailing wage survey.42 The new prevailing wage would probably be determined by a SESA,43 whose difficulty in producing consistent and accurate wages was acknowledged by the DOL in GAL No. 4-95. The investigation - and thus the wage determination - could take place years later, with no adjustment for inflation or change in market conditions. Most unsettling, however: the wage would be based on a job description drafted by the DOL, presumably with little or no input from the employer until the employer formally challenged the wage through the Employment Service complaint system.44 All this could result in substantial back-pay obligations and penalties, not to mention legal fees, for the employer.

Actual Wage

In its final rule, the DOL has focused more attention on the actual wage than it did under the interim rule. Much of the supplementary information of the interim rule has been incorporated into an appendix to the final rule. Whereas, under the interim rule, the prevailing wage had to be updated (and not the actual wage45), now, under the final rule, the actual wage must be updated46 (and not the prevailing wage). The DOL has indicated, at least orally, that it does not expect a daily or continuous update of actual wage. Rather, only periodic adjustments to wages like cost-of-living adjustments (COLAs) must be included. Even better, the documentation of the employer's methodology (including such adjustments) at the outset should suffice, as long as the employer can document that the H-1B workers' wages were in fact adjusted along the way.47 This is consistent with the statutory mandate that the actual (and prevailing) wage level be based on the best available information at the time of filing the LCA.48

The touchstone of the actual wage under the final rule is "an objective system used to determine the wages of non-H-1B workers" which the employer must then apply to H-1B workers.49 This clarification of the interim rule has been so controversial that Congress, in Lamar Smith's bill, has specifically rejected this notion.50

How an employer develops this objective system is a key issue raised by the final rule. Related to this is whether the rule imposes obligations on the employer as to its non-H-1B employees. The second key issue raised by the final rule is how market conditions can be included in the calculation of actual wage.

Objective system for non-H-1B employees?

The "objective system" mandated by the final rule raises this issue: Does the LCA regime now impose on H-1B employers a methodology for determining wage levels of non-H-1B workers? The statute refers to the actual wage paid to all "other" - i.e., non-H-1B - individuals similarly employed.51 The actual text of the final rule does not explicitly mandate the creation of such a pay system (or any system) for non-H-1B employees. However, the final rule's appendix, which is incorporated by reference in the final rule,52 imposes the obligation.53 The final rule, like the interim rule, also requires, as "necessary" supporting documentation, a "full, clear explanation of the system" that the employer used to set the actual wage.54 The "necessary" documentation is another example of statutory language that Congress introduced via MTINA in order to alleviate the burden of compliance on H-1B employers, but that the DOL has interpreted to impose a substantive requirement on employers.55

The DOL takes the position that the "objective system" is not a new requirement, i.e., that the regulation's section on the public access and retention of records has required a compensation system all along. Further, it takes the position that the employer must have a system in place even if the H-1B worker's position is unique.56 Under the interim rule, practitioners had understood that it would suffice to have a brief statement that the H-1B worker's position is unique and that the actual wage is therefore equal to the H-1B worker's wage. It remains to be seen whether the DOL's position will prevail. In the meantime, it would be prudent to list those factors that the employer considered in determining the H-1B worker's salary, even when the position is unique. This is also true for employers (such as job contractors) whose entire work force is composed of H-1B workers. Despite the statute's reference to other (i.e., non-H-1B) workers, WHD's enforcement position in such cases is to determine the actual wage by reference to similarly employed H-1B workers.57

It is a legitimate regulatory concern of the DOL that employers calculate the actual wage accurately. The final rule's warning that the actual wage is not an average wage58 is instructive of the abuse the DOL perceives: that employers are not articulating why there are differences in wage levels between H-1B and non-H-1B workers. Moreover, the DOL is acutely aware of its own enforcement limitations: the DOL cannot effectively police employers without some insight as to how the employer calculated or, by its own criteria, should have calculated, the actual wage.

The final rule could be read to require a wage level for non-H-1B workers. Such an interpretation, however, is contrary to the language of the statute59 and to the purpose of the H-1B program as intended by Congress.60 Nor is it mandated by the regulations. By its own terms, the final rule applies only to H-1B workers: The objective system must enable a third party to calculate the actual wage "computed by the employer for any H-1B nonimmigrant."61 Moreover, the final rule emphasizes that the employer, not the DOL, determines which objective standards - experience, qualifications, education, specific job responsibility and function, specialized knowledge and other legitimate business factors - it considers in establishing a comparable pool of employees for actual wage purposes: "The use of any or all these factors is at the discretion of the employer."62

Does an "objective" system automatically preclude "subjective" factors? Some lawyers fear that the final rule prohibits consideration of such factors as loyalty and work ethic.63 Many ostensibly "subjective" factors, e.g., efficiency and ability to work in a team, are in fact the consequence of one or more of the objective standards listed in the regulations, e.g., experience or education. Other subjective factors like attitude generally translate into more easily quantifiable objective factors like productivity or profitability, which presumably constitute "other legitimate business factors." If "subjective" means irrational, discriminatory or otherwise unjustifiable, then the regulations, of course, would preclude such factors.

The term, "objective system used to determine the wages of non-H-1B workers," may amount to a new substantive requirement that the DOL has introduced without the necessary notice and comment period. More likely, it is no more than unfortunate wording by the DOL in its attempt to make explicit what was presumed or implied in the interim rule: the existence of "factors"64 that, when considered together, amount to some kind of compensation system.65 The latter interpretation is consistent with the DOL's position that the final rule merely clarifies the interim rule.

This analysis does not provide a definitive answer to the central question, raised by both the interim rule and the final rule: How should the actual wage be documented in order to comply with the regulations? In a teleconference with the DOL, lawyers suggested model language that the DOL found acceptable in principle. One example was: "Position has range from $33,000 to $56,000; I determine salaries based on salaries and level of experience as an engineer; I recognize and increase the salary for those with particular demonstrated skills or experience in a specialized area in which we are working."66 Unfortunately, there is no safe harbor provided by the regulations, and the DOL has remained noncommittal, insisting that a determination must be made on a case-by-case basis.67

Market conditions

Despite mixed messages from the DOL68 and confusion among lawyers, there is no doubt that the final rule allows market forces to be incorporated into the actual wage formula. The question is how to do so as part of a compensation system in compliance with the final rule. Under the final rule, the employer's pay system may take into account "market forces."69 The reference here is in the context of adjustments to the pay system. And the final rule's example only mentions an increase in pay for entry-level positions. Still, the analysis should be the same for the initial determination of the actual wage and for all positions, and should also take into account decreases in pay. These market forces would also presumably constitute "other legitimate business factors," since they presumably "conform to recognized principles" of a market economy.70

The WHD has hesitated to endorse "market forces." It is concerned that such a terse explanation of the actual wage would not allow WHD to verify the wage level that the H-1B employer is actually paying. For example, if an employer states that it "just shoots from the hip in negotiating," that would be inadequate.71 This position is presumably based on the assumption that all employers hire their employees at a particular price for reasons that can be articulated. This assumption is not unreasonable. Nonetheless, this sort of pronouncement has led to concern among lawyers that market conditions must per se be excluded from the actual wage equation.72

Jan Pack, WHD's Counsel for Employment Standards, likewise claims the question of market forces "is hard to answer because the spectre arises 'I paid him what he was worth'" (which also gives WHD nothing to work with). She offers this guidance: "In the abstract, you can say 'level of profit and level of profit-generating by the worker on his last job' seems objective."73 In other words, a previous employer's compensation is a legitimate factor to be considered when calculating actual wage.

Based on the language of the final rule and DOL pronouncements, market conditions may (and, in fact, should) be factored into the actual wage. These would include economic downturn, outsourcing and downsizing as well as inflation, COLAs and geographic differences in the cost of living and doing business (as evidenced by the regulation's definition of actual wage as the wage "at the place of employment"74). The issue is not whether these are legitimate factors in determining actual wage levels, but how to translate them into an objective nondiscriminatory system.

The development of such an objective system is no mean task. It requires an employer (or its lawyer) to re-think and explain its compensation system, often in a way that at first glance seems nonsensical or outright wrong to the employer. Immigration lawyers familiar with H-1B petitions and labor certifications are accustomed to such unusual analysis. For example, how many employers do in fact impose minimum requirements (including a bachelor's degree in a specific field) that aren't reflected in the "standard" job description?

An actual-wage compensation system can be developed that incorporates market forces. For example, wage surveys (including SESA prevailing wage determinations) for the position should be objective enough for the DOL, and they should reflect how market conditions have influenced wages in the area (including the employer's actual wage).75 Indeed, many employers do in fact regularly rely on wage surveys when negotiating salaries.

It remains to be seen whether the DOL would accept an actual wage memorandum that states that a wage survey (or prior compensation) is the sole determinant of actual wage. Administrative LCA decisions have not yet described fact patterns in enough detail to guide an employer in developing a wage system and reflecting it in the actual wage memorandum.76

Certain market conditions or forces are, of course, prohibited or regulated by law and would not be appropriate factors to use in determining the actual wage. The most obvious examples of these are the payment of less than minimum wage and the kinds of discrimination prohibited by Title VII. Beyond these obvious prohibitions, the supplementary information to the interim rule provided further examples of "illegitimate" factors. These included the H-1B worker's willingness to work for less; salary parity with the H-1B's peers in the country of origin; and the H-1B's qualifications irrelevant to the position.77 Only the second factor, salary parity with the H-1B's home country (the least controversial of the three) was incorporated into the final rule.78 The other two, willingness to compete and compensation only for relevant skills, are cornerstones of a market economy. Their exclusion from the final rule is yet another, albeit implicit, acknowledgment of the appropriateness of considering market forces in determining actual wage.

Conclusion

The complex detail in the final rule on LCAs - especially in its wage provisions - can be maddening. The ambiguity that remains despite this detail is infuriating and portends further DOL clarifications and attempts by lawyers to make sense of them. In fact, the DOL has already announced its intention to revise the regulations79 and to release a "public domain opinion letter,"80 and it has recently issued a notice of enforcement position on record-keeping that is of little help.81 It remains to be seen whether the DOL offers any clearer guidance for H-1B employers.

Notes

1 This is the second in a series of articles analyzing the Department of Labor's final rule, published December 20, 1994, on the labor condition application process under the H-1B nonimmigrant visa category. See 72 Interpreter Releases 265 (February 27, 1995). The content of this article will be incorporated, in modified form, in 1 Charles Gordon, Stanley Mailman and Stephen Yale-Loehr, Immigration Law and Procedure, [[section]] 20.08[3][e].

2 Ted J. Chiappari is an associate with Satterlee Stephens Burke & Burke LLP in New York. For their assistance in the preparation of this article, Mr. Chiappari wishes to thank Stanley Mailman, Angelo A. Paparelli and Stephen Yale-Loehr.

3 The final rule is reported and reproduced in 72 Interpreter Releases 1 (January 3, 1995).

4 See, e.g., Angelo A. Paparelli, Is Grandfather Dead? The Labor Department's Retroactive Enforcement of its New H-1B Regulations, 72 Interpreter Releases 265 (February 27, 1995); Steven C. Bell, The DOL Contemplates Further Changes to the H-1B LCA Process, 14 Immigration Law Report at 6 (January 1, 1995); Steven C. Bell, The Department of Labor's Final Labor Condition Application Rules, 14 Immigration Law Report at 13 (January 15, 1995); Steven C. Bell, Issues Left Open by the New LCA Rules, 14 Immigration Law Report at 32 (February 1, 1995); Steven C. Bell, Some Answers on LCA Issues, 14 Immigration Law Report at 42 (February 15, 1995); Steven A. Clark, Josie Gonzalez and David Stanton, Labor Practice Advisory: New LCA Regulations Change Application and Enforcement Procedures, 14 AILA Monthly Mailing at 105 (February 1995); Line-by-Line Annotation of Form ETA 9035 (Revised 12/94), 14 Immigration Law Report 85 (April 1, 1995); Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings (April 1995).

5 Conferences of which author is aware were held January 12, January 23, February 22, February 23, March 15, March 30, April 20, and June 14-18, 1995 (American Immigration Lawyers Association [AILA] annual conference): January 12, 1995 teleconference, organized by AILA, in which the DOL was represented by Scott Cote, Assistant to the Chief, Division of Foreign Labor Certifications, Employment and Training Administration [ETA], Dennis M. Gruskin, Manpower Development Specialist, Division of Foreign Labor Certifications, ETA, Dean Speer, Director, Policy and Analysis, Wage and Hour Division, Employment Standards Administration [WHD], and John Fraser, Deputy Administrator, WHD, summarized in Steven A. Clark, Josie Gonzalez and David Stanton, Labor Practice Advisory, 14 AILA Monthly Mailing at 185 (March 1995)); January 23, 1995, conference held by the American Council on International Personnel (ACIP) in New York, discussed in Steven C. Bell, Some Answers on LCA Issues, 14 Immigration Law Report at 42 (February 15, 1995); February 22, 1995 teleconference, organized by AILA, in which the DOL was represented by Messrs. Fraser and Speer, as well as Thomas Shierling, Branch Chief, Farm Labor and Immigration Programs, WHD Enforcement Coordinator; February 23, 1995 teleconference, in which Mr. Fraser answered follow-up questions to the February 22 teleconference; March 15, 1995 teleconference with DOL Inspector General John Riggs and his assistant Richard Lowe, summarized on AILA InfoNet by Richard Breitman on March 17, 1995 (document no. 5SC17C.TXT, titled Notes from LCA Audit Tele-Conf 3/16/95); March 30, 1995 conference, at which AILA and business groups met with Messrs. Fraser and Speer, summarized by Elissa M. McGovern in DOL Interprets New Regulations, AILA Monthly Mailing (May 1995) 345; on March 30, DOL and AILA also held their regular liaison meeting, minutes of which were reproduced on AILA InfoNet under the title 3/30/95 DOL/AILA Liaison Mtg. Meetings (document no. 5SH25A.TXT); April 20, 1995 teleconference, summarized on AILA InfoNet courtesy of Richard Breitman on May 1, 1995, document no. LCAETA.TC, titled NOTES LCA Conf Call, in which the DOL was represented by Messrs. Shierling, Gruskin and Cote, as well as Linda Jan S. Pack, Counsel for Employment Standards, and Mario Fernandez of the Office of the Solicitor, Fair Labor Standards Division; AILA's annual conference in Atlanta (June 1995) (see conference program and materials for speakers).

6 Barbara Ann Farmer, DOL Administrator for Regional Management, Memorandum for All Regional Administrators, February 21, 1995, reprinted at 72 Interpreter Releases 567 (April 24, 1995) (also on AILA InfoNet, document number 5SC03C.TXT); Barbara Ann Farmer, DOL Administrator for Regional Management, General Administration Letter No. 4-95 (May 18, 1995), issued to all State Employment Security Agencies (SESAs), reprinted at 72 Interpreter Releases 848 (June 26, 1995) (also on AILA InfoNet, titled Prevailing Wage for Nonagrilutural [sic] Immigration; document number 5BF061.TXT). GAL No. 4-95 was followed up by John M. Robinson, DOL Deputy Assistant Secretary, Employment Service Program Letter No. __, reproduced on AILA InfoNet under the title Qs and As on Alien Labor Cert. Program, document no. 5SG31A (undated, posted on AILA InfoNet on July 31, 1995) (providing answers to questions raised at November 1994 training session).

7 National Association of Manufacturers (NAM) v. United States Department of Labor; discussed in 72 Interpreter Releases 559 (April 24, 1995); See also Steven C. Bell, Developments at the Labor Department, 14 Immigration Law Report 169 (July 15, 1995). Copy of NAM's press release announcing the law suit is on file with author. In an August 16, 1995 memorandum (also on file with author), Elissa M. McGovern, AILA Sr. Policy Analyst, and Jennifer Eisen Elmas, AILF Program Manager, reported that the discovery stage was complete (NAM requested only the administrative record of the final rule, which had already been produced), and that motions for summary judgment would be filed in September; they were in fact filed.

8 Immigration in the National Interest Act of 1995, H.R. 2202 (the Lamar Smith bill).

9 The audit also covers labor certification applications in connection petitions for permanent residence. See Richard L. Breitman, memorandum posted on AILA InfoNet on December 29, 1994 (document no. 35740), reprinted at New York AILA's monthly newsletter at 47 (February 1995); Elissa M. McGovern, March 9, 1995 memorandum posted on AILA InfoNet as DOL Audit Information (doc. no. 5SCO98.TXT), summarizing meeting between AILA members and DOL's Office of the Inspector General, reprinted at New York AILA monthly newsletter at 50 (February 1995) (also reproduces copy of questions asked at audit interview); March 16, 1995 teleconference with DOL's Office of Inspector General re LCA audit procedure, summarized on AILA InfoNet by Richard L. Breitman, document 5SC17C.TXT (posted March 17, 1995, as Notes from LCA Audit Tele-Conf 3/16/95). The DOL has asserted that the OIG audit is not part of the implementation and enforcement of the LCA regulations; rather, the OIG is examining the department's administration of LCAs. See, e.g., notes on January 12, 1995 teleconference on LCA regulations (Fraser of WHD). However, the DOL has indicated that Office of Inspector General does have the power to inform ETA and WHD of violations.

10 For a discussion of the recent recommendations by the U.S. Commission on Immigration Reform headed by Barbara Jordan, published in summary form in a June 7, 1995 press release, see 72 Interpreter Releases 793 (June 12, 1995) (including reprint of summary at 808) and Commission Justifies Recommendation to Reduce Legal Immigration, 14 Immigration Law Report 229 (October 1, 1995). The Commission reserved comment on nonimmigrant (temporary) admissions until a later date. Copy of Ms. Jordan's statement accompanying the summary is on file with author.

11 Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings (April 1995).

12 For a history of the H-1 category and a discussion of the Immigration Act of 1990 and the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), see Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 1-3 (April 1995); 1 Charles Gordon, Stanley Mailman and Stephen Yale-Loehr, Immigration Law and Procedure [[section]][[section]] 20.01, 20.08.

13 20 C.F.R. [[section]][[section]] 655.705(a)(1), 655.730(b); Immigration and Nationality Act [INA] [[section]] 212(n)(1), 8 U.S.C. [[section]] 1182(n)(1). See Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 3 (April 1995).

14 20 C.F.R. [[section]][[section]] 655.705(a)(2), 655.710, and 655.800 through 655.855 (Subpart I).

15 . 57 Fed. Reg. 1316 (January 13, 1992); 59 Fed. Reg. 65646 (December 20, 1994). See Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 3 (April 1995).

16 WHD, Field Operations Handbook, Enforcement of H-1B Labor Condition Applications (Chapter 71), [[section]] 71c02 (April 11, 1994, covering the interim final rule): "Regardless of the focus of the complaint ..., the wage provision will be examined in all cases." Cf. 20 C.F.R. [[section]] 655.810(a) (provision of back wages as remedy). A copy of Chapter 71 of WHD, Field Operations Handbook (April 11, 1994) is on file with the author.

17 A discussion of the recent developments in the permanent labor certification context that affect prevailing wage determinations is beyond the scope of this article. See generally 20 C.F.R. [[section]] 656.40; Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 9-18 (April 1995); Mark Levey, Prevailing Wage Determinations: Labor Department Runs Amok, 14 Immigration Law Report 193 (August 15, 1995); for a summary of recent decisions by the Board of Alien Labor Certification Appeals (BALCA) on prevailing wage, see News from BALCA, BALCA Decisions Address Minimum Requirements and Prevailing Wages, 14 Immigration Law Report 223, 226-228 (September 15, 1995).

18 20 C.F.R. [[section]] 655.730(c)(1)(vi).

19 See, e.g., supplementary information to the final rule, 59 Fed. Reg. 65646, 65648 (December 20, 1994), reproduced at 72 Interpreter Releases 10 (January 3, 1995).

20 Barbara Ann Farmer, USDOL Administrator for Regional Management, Memorandum for All Regional Administrators, February 21, 1995, reprinted at 72 Interpreter Releases 567 (April 24, 1995); also reprinted on AILA InfoNet, document number 5SC03C.TXT, under title "DOL on the Rejection of Labor Condition Applic." For discussion of this memo, see also Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, Immigration Briefings (May 1995) at 6.

21 20 C.F.R. [[section]] 655.730(c)(1)(vi).

22 Author's telephone conference with supervisor at regional office.

23 See, e.g., Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 9 (April 1995).

24 See, e.g., Department of Labor v. Professional Therapy Staffing, Inc., 93-LCA-1 (November 4, 1993, Cincinnati, Ohio); [Wage and Hour Division, DOL v. Astea International, 93-LCA-3 (June 17, 1993, Bedford, Massachusetts);] [Department of Labor v. Allied Rehabilitation and Pain Management Center, Inc., 93-LCA-5 (November 29, 1993, Pittsburgh, Pennsylvania);] Wage and Hour Division, DOL v. Complete Business Solutions, Inc., 93 LCA-6 (December 30, 1993, Washington, D.C.); Wage and Hour Division, DOL v. Digital Equipment Corporation, 93-LCA-7 (December 6, 1993, Washington, D.C.).

25 Reprinted at 72 Interpreter Releases 848 (June 26, 1995).

26 Employment and Training Administration, Department of Labor, Technical Assistance Guide (TAG), No. 656, Labor Certifications (1981), reproduced in 8 Charles Gordon, Stanley Mailman and Stephen Yale-Loehr, Immigration Law and Procedure. For a discussion of the TAG's prescribed methodology, see Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 14-15 (April 1995).

27 For an analysis of General Administration Letter No. 4-95, see Steven C. Bell, Developments at the Labor Department, 14 Immigration Law Report 169, 171 (July 15, 1995); Mark Levey, Prevailing Wage Determinations: Labor Department Runs Amok, 14 Immigration Law Report 193 (August 15, 1995); 72 Interpreter Releases 829, 838 (June 26, 1995) (GAL No. 4-95 reproduced at 72 Interpreter Releases 848).

28 For details on the November 1994 meeting, see March 30, 1995 DOL/AILA Liaison Minutes, Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 14 (April 1995), Steven C. Bell, Developments at the Labor Department, 14 Immigration Law Report 169, 171 (July 15, 1995), and David Stanton, H. Ronald Klasko and Steven A. Clark, Labor Practice Advisory, The 56 Questions and Answers, 14 AILA Monthly Mailing 679 (October 1995).

29 John M. Robinson, DOL Deputy Assistant Secretary, Employment Service Program Letter No. __, reproduced on AILA InfoNet under the title Qs and As on Alien Labor Cert. Program, document no. 5SG31A (undated, posted on AILA InfoNet on July 31, 1995). For an analysis of this letter, see David Stanton, H. Ronald Klasko and Steven A. Clark, Labor Practice Advisory, The 56 Questions and Answers, 14 AILA Monthly Mailing 679 (October 1995).

30 The instruction in GAL No. 4-95 is consistent with prior DOL pronouncements. See, e.g., Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 12 (April 1995). See also David Stanton, H. Ronald Klasko and Steven A. Clark, Labor Practice Advisory, The 56 Questions and Answers, 14 AILA Monthly Mailing 679, 681 (October 1995). Concern was also expressed by Theodore Ruthizer and Ronald Klasko at a monthly meeting of AILA's New York chapter (February 6, 1995).

31 Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 12 (April 1995), quoting Flora Richardson, ETA's Chief, Division of Foreign Labor Certification.

32 20 C.F.R. [[section]] 655.731(a)(2)(iii), (b)(3)(iii). For definition of "area of intended employment," see 20 C.F.R. [[section]] 655.715.

33 GAL No. 4-95 at 1.

34 Changes are to be made to 20 C.F.R [[section]] 656.40, the regulation defining prevailing wage in the labor certification context. In the LCA final rule, SESAs are instructed to conduct wage surveys in accordance with this section "and other administrative guidelines or regulations issued by ETA." 20 C.F.R. [[section]] 655.731(a)(2)(iii)(A).

35 Author's telephone conferences with SESAs in two states, Florida and Maryland.

36 20 C.F.R. [[section]] 655.731(b)(3)(iii)(B) lists criteria for published wage surveys ("an independent authoritative wage source"); 20 C.F.R. [[section]] 655.731(b)(3)(iii)(B) lists criteria for other legitimate sources. See also 20 C.F.R. [[section]] 655.731(a)(2)(B) and (C). For guidance on how to evaluate non-SESA, unpublished wage sources, see Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 14-15 (April 1995); see also DOL's TAG No. 656, [[section]] I.O., and its Deskbook of the Board of Alien Labor Certification Appeals (BALCA) [[section]] 18.V.B.1.

37 MTINA, Pub. L. No. 102-232, [[section]] 303(a)(7)(B)(i)(III), 105 Stat. 1733, 1747 (1991) (amending INA [[section]] 212(n)(1)(A), 8 U.S.C. [[section]] 1182(n)(1)(A)).

38 137 Cong. Rec. S18245 (November 26, 1991) (statement of Senator Edward Kennedy), reproduced at 68 Interpreter Releases 1758-1759 (December 9. 1991). See also Angelo A. Paparelli and Charles H. Kuck, From "The Border of Death's Kingdom": Congress Resurrects the H-1B Visa (Part 1), 69 Interpreter Releases 657, 659 (June 1, 1992); Angelo A. Paparelli and Catherine L. Haight, Avoiding or Accepting Risks in H-1B/LCA Practice: Part I, 92-11 Immigration Briefings 8-9 (November 1992); Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 13 (April 1995).

39 20 C.F.R. [[section]] 655.731(a)(2)(iii). The "best available" language also appears earlier in [[section]] 655.731(a)(2). See also supplementary information to the interim final rule, 57 Fed. Reg. 1321 (January 13, 1992), reproduced at 69 Interpreter Releases 45 (January 13, 1992), in which the DOL states that it has "identified" the wage sources that it believes to be "best information." For further discussion, see Angelo A. Paparelli and Catherine L. Haight, Avoiding or Accepting Risks in H-1B/LCA Practice: Part I, 92-11 Immigration Briefings 8-9 (November 1992).

40 20 C.F.R. [[section]] 655.731(a)(2)(iv)(B).

41 Teleconference of January 12, 1995.

42 20 C.F.R. [[section]] 655.731(d)(1).

43 20 C.F.R. [[section]] 655.731(d)(3).

44 20 C.F.R. [[section]] 655.731(d)(2), 20 CFR Part 658, Subpart E ([[section]][[section]] 658.400-426 in April 1, 1994 ed. of CFR).

45 Some lawyers understood the last clause of 20 C.F.R. [[section]] 655.730(e)(1)(iv), 57 Fed. Reg. 1316, 1329 (January 13, 1992), which requires the updating of prevailing wage data every 24 months "unless the actual pay rate exceeds the prevailing wage," to require an update of the actual wage.

46 20 C.F.R. [[section]] 655.731(a)(1). The supplementary information to the final rule describes the actual wage as a "safety net" for the H-1B worker. 57 Fed. Reg. 65646, 65654 (December 20, 1994).

47 Elissa McGovern's summary of the March 30, 1995 conference. See also Dean Speer's comments in January 12, 1995 teleconference: "It was not the intent that [the employer would] have to do complete redocumentation when wage is adjusted. If it is shown the [employer] has followed normal procedures and practices, that will be sufficient."

48 INA [[section]] 212(n)(1)(A)(i), 8 U.S.C. [[section]] 1182(n)(1)(A)(i). The relevant regulation, 20 C.F.R. [[section]] 655.731(a)(1), unlike the section on prevailing wage, 20 C.F.R. [[section]] 655.731(a)(2), does not repeat this statutory language; see discussion of "best information available" above.

49 20 C.F.R. [[section]] 655.731(b)(1). See also April 20, 1995 teleconference (statement by Jan Pack, WHD's Solicitor's Office); for a discussion of actual wage, see generally Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 18-20 (April 1995).

50 Immigration in the National Interest Act of 1995, H.R. 2202, [[section]] 806(a) (adding INA [[section]] 212(n)(3)).

51 INA [[section]] 212(n)(1)(A), 8 U.S.C. [[section]] 1182(n)(1)(A).

52 20 C.F.R. [[section]] 655.731(a)(1); see also supplemental information, 59 Fed. Reg. 65646, 65655 (December 20, 1994).

53 20 C.F.R. [[section]] 655 Appendix A to Subpart H -- Guidance for Determination of the Actual Wage (immediately following 20 C.F.R. [[section]] 655.760). The Appendix also makes reference in this same paragraph to an employer "establishing its compensation system for workers in an occupational category."

54 20 C.F.R. [[section]] 655.760(a)(3) (1995); this portion of the section is identical to the interim final rule, 20 C.F.R. [[section]] 655.760(a)(3), 57 Fed. Reg. 1316, 1333 (January 13, 1992), reproduced at 69 Interpreter Releases 45 (January 13, 1992).

55 MTINA, Pub. L. No. 102-232, [[section]] 303(a)(7)(B)(ii), 105 Stat. 1733, 1747 (1991) (amending INA [[section]] 212(n)(1), flush paragraph following subparagraph (D), 8 U.S.C. [[section]] 1182(n)(1)); 137 Cong. Rec. S18245 (November 26, 1991) (statement of Senator Edward Kennedy), reproduced at 68 Interpreter Releases 1758-1759 (December 9. 1991); 20 C.F.R. [[section]] 655.760(a). See discussion above of "best information available."

56 Tom Shierling and Jan Pack, April 20, 1995 teleconference.

57 WHD, Field Operations Handbook, Enforcement of H-1B Labor Condition Applications (Chapter 71), [[section]] 71d02(c)((2) (April 11, 1994, covering the interim final rule).

58 20 C.F.R. [[section]] 655 Appendix A to Subpart H -- Guidance for Determination of the Actual Wage (immediately following 20 C.F.R. [[section]] 655.760). Ironically, both the supplementary information to the final rule and WHD's Field Operations Handbook provide that, where the employer has not computed the actual wage, WHD can do so by averaging the wages. 59 Fed. Reg. 65655 (December 20, 1994); WHD, Field Operations Handbook, Enforcement of H-1B Labor Condition Applications (Chapter 71), [[section]] 71d02(c)((2) (April 11, 1994, covering the interim final rule).

59 INA [[section]] 212(n)(1)(A)(i), 8 U.S.C. [[section]] 1182(n)(1)(A)(i).

60 The Immigration Act of 1990, which made the LCA part of the H-1B process, mandated that employers pay the required wage to H-1B and non-H-1B workers alike. Pub. L. 101-649, [[section]] 205(c)(3), 104 Stat. 5020-5022 (1990) (adding INA [[section]] 212(n), 8 U.S.C. [[section]] 212(n)). MTINA removed the obligation to pay the required wage to non-H-1B workers. MTINA, Pub. L. No. 102-232, [[section]] 303(a)(7)(B)(i)(I), 105 Stat. 1747 (1991) (amending INA [[section]] 212(n)(1)(A)(i), 8 U.S.C. [[section]] 1182(n)(1)(A)(i)). See Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 2 (April 1995).

61 20 C.F.R. [[section]] 655 Appendix A to Subpart H -- Guidance for Determination of the Actual Wage (immediately following 20 C.F.R. [[section]] 655.760) (emphasis added). See also 20 C.F.R. [[section]] 655.810(a) (award of back wages only to H-1B workers).

62 20 C.F.R. [[section]] 655 Appendix A to Subpart H -- Guidance for Determination of the Actual Wage (immediately following 20 C.F.R. [[section]] 655.760).

63 See, e.g., Margaret H. McCormick and David Stanton, Finding the Correct Wage for LCAs: Recent Developments in H-1B Practice, 95-04 Immigration Briefings 19 (April 1995) (mentions as subjective factors "dedication to the job, efficiency, a positive attitude, and ability to work well with others").

64 20 C.F.R. [[section]] 655.730(e)(1)(i), (e)(2)(ii), 57 Fed. Reg. 1316, 1328, 1329 (January 13, 1992). Cf. the final rule, 20 C.F.R. [[section]] 655.731(a)(1), which refers to the same "factors," and 20 C.F.R. [[section]] 655 Appendix A to Subpart H, which refers to "objective standards relating to experience, qualifications, education, specific job responsibility and function, specialized knowledge, and other legitimate business factors" [emphasis added], i.e., standards relating to the "factors" listed in both the final rule and the interim final rule.

65 See supplementary information to the interim rule, 57 Fed. Reg. 1316, 1320 (January 13, 1992) ("factors which can be shown to provide a bona fide basis for justifying different compensation levels for H-1B nonimmigrants and other workers employed in the specific occupation").

66 Offered by Richard Breitman in teleconference of April 20, 1995.

67 Teleconference of April 20, 1995.

68 In various conferences, discussed below. The DOL has already acknowledged that it has been inconsistent in interpreting and applying its prevailing wage regulations. See GAL No. 4-95 at 1, discussed above at note 29.

69 20 C.F.R. [[section]] 730(a)(1) ("Where the employer's pay system or scale provides for adjustments during the period of the LCA -- e.g., ... higher entry rate due to market conditions ... -- such adjustments shall be provided to similarly employed H-1B nonimmigrants...."). 20 C.F.R. [[section]] 655 Appendix A to Subpart H -- Guidance for Determination of the Actual Wage, which refers to "market forces," repeats this language in slightly altered form: "Where the employer's pay system or scale provides adjustments during the validity period of the LCA -- e.g., ... increase in the entry-level rate for the occupation due to market forces ... -- the employer shall retain documentation explaining the changes...."

70 20 C.F.R. [[section]] 655 Appendix A to Subpart H -- Guidance for Determination of the Actual Wage (immediately following 20 C.F.R. [[section]] 655.760).

71 Dean Speer, January 12, 1995 and February 22, 1995 teleconferences.

72 See, e.g., Steven C. Bell, Some Answers on LCA Issues, 14 Immigration Law Report at 43 (February 15, 1995), reporting that DOL representatives at the January 23, 1995 ACIP conference stated that the DOL "will not consider legitimate ... a wage [that] is based on 'market conditions,' or is the 'lowest negotiated wage' that the employer is able to work out with an individual employee."

73 April 20, 1995 teleconference.

74 20 C.F.R. [[section]] 655.715.

75 See Austin T. Fragomen, Jr., Claudia Slovinsky and David P. Barry, Strategic Approaches to Difficult Issues for Computer Professionals, 159, 168-69, in 2 1995-96 Immigration & Nationality Law Handbook (Advanced Practice) (ed. R. Patrick Murphy).

76 See generally Carl M. Shusterman and David L. Neal, Survey and Analysis of H-1B Labor Condition Application Decisions, 72 Interpreter Releases 49 (January 9, 1995).

77 57 Fed. Reg. 1316, 1320 (January 13, 1992).

78 Example 4 in 20 C.F.R. [[section]] 655, Appendix A to Subpart H.

79 GAL No. 4-95 (May 18, 1995), reprinted at 72 Interpreter Releases 848 (June 26, 1995).

80 See, e.g., Elissa McGovern's summary of March 30, 1995 meeting with DOL, notes on teleconference of April 20, 1995, and David Stanton, H. Ronald Klasko and Steven A. Clark, Labor Practice Advisory, Problems with the Roving Employees, in 14 AILA Monthly Mailing 601 (September 1995).

81 60 Fed. Reg. 49505 (September 26, 1995).