20 CFR 656.40 - Determination of prevailing wage for labor certification purposes.
Section Number: 656.40
Section Name: Determination of prevailing wage for labor certification purposes.
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(a) Whether the wage or salary stated in a labor certification
application involving a job offer equals the prevailing wage as required
by Sec. 656.21(b)(3), shall be determined as follows:
(1) If the job opportunity is in an occupation which is subject to a
wage determination in the area under the Davis-Bacon Act, 40 U.S.C. 276a
et seq., 29 CFR part 1, or the McNamara-O'Hara Service Contract Act, 41
U.S.C. 351 et seq., 29 CFR part 4, the prevailing wage shall be at the
rate required under the statutory determination. Certifying Officers
shall request the assistance of the DOL Employment Standards
Adminstration wage specialists if they need assistance in making this
determination.
(2) If the job opportunity is in an occupation which is not covered
by a prevailing wage determined under the Davis-Bacon Act or the
McNamara-O'Hara Service Contract Act, the prevailing wage for labor
certification purposes shall be:
(i) The average rate of wages, that is, the rate of wages to be
determined, to the extent feasible, by adding the wage paid to workers
similarly employed in the area of intended employment and dividing the
total by the number of such workers. Since it is not always feasible to
determine such an average rate of wages with exact precision, the wage
set forth in the application shall be considered as meeting the
prevailing wage standard if it is within 5 percent of the average rate
of wages; or
(ii) If the job opportunity is covered by a union contract which was
negotiated at arms-length between a union and the employer, the wage
rate set forth in the union contract shall be considered as not
adversely affecting the wages of U.S. workers similarly employed, that
is, it shall be considered the ``prevailing wage'' for labor
certification purposes.
(b) For purposes of this section, except as provided in paragraph
(c) of this section, ``similarly employed'' shall mean ``having
substantially comparable jobs in the occupational category in the area
of intended employment,'' except that, if no such workers are employed
by employers other than the employer applicant in the area of intended
employment, ``similarly employed'' shall mean:
(1) ``Having jobs requiring a substantially similar level of skills
within the area of intended employment''; or
(2) If there are no substantially comparable jobs in the area of
intended employment, ``having substantially comparable jobs with
employers outside of the area of intended employment.''
(c) For purposes of this section, similarly employed in the case of
researchers employed by colleges and universities, Federally Funded
Research and Development Centers (FFRDC's) administered by colleges and
universities or Federal research agencies, means researchers employed by
colleges and universities, FFRDC's administered by colleges and
universities, and Federal research agencies in the area of intended
employment.'' If no researchers
are employed by colleges and universities, FFRDC's administered by
colleges and universities, and Federal research agencies other than the
employer applicant, researchers employed by colleges and universities,
FFRDC's administered by colleges and universities, and Federal research
agencies outside the area of intended employment shall be considered
``similarly employed.''
(d) A prevailing wage determination for labor certification purposes
made pursuant to this section shall not permit an employer to pay a wage
lower than that required under any other Federal, State or local law.
[45 FR 83933, Dec. 19, 1980, as amended at 63 FR 13767, Mar. 20, 1998]
Effective Date Note: At 63 FR 13767, Mar. 20, 1998, Sec. 656.40 was
amended in paragraph (b) introductory text by adding the phrase ``except
as provided in paragraph (c) of this section,'' immediately after the
phrase ``For purposes of this section,''; paragraph (c) is redesignated
as paragraph (d), and a new paragraph (c) is added, effective May 4,
1998.
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