USMCA Part-Time, Temporary, Seasonal, and Contract Workers

Subsection 810.120(a) provides that hours of part-time workers, temporary workers, and seasonal workers are treated the same as hours of full-time workers for purposes of calculating the average hourly base wage rate. The Department understands that such workers are common in the automobile industry, and sees no basis in the USMCA or the Act for treating such workers differently than permanent full-time workers when calculating the average hourly base wage rate. What matters for USMCA purposes is the worker’s base rate of pay and the type of work the worker performs, not the timing of the worker’s work or whether it technically is provided on a part-time or full-time basis. The Department’s equal treatment of all workers is reflected in the average hourly base wage rate calculation, which appropriately weights the pay and hours worked for all workers by simply dividing the total base wages paid for all hours worked in direct production by the total number of hours worked in direct production. A different approach (such as granting producers discretion to exclude these workers from its Start Printed Page 39789calculations under certain circumstances) could skew the calculations so that they do not accurately represent the actual average hourly base wage rates for time workers spent performing direct production work. Without accurate average hourly base wage rates, the Department could not effectively verify whether producers have complied with the high-wage components of the LVC requirements, thereby undermining the purpose of the USMCA and the Act.

Subsection 810.120(b) provides that workers’ hours are included in the average hourly base wage rate calculation even if the workers do not have an employment relationship with the producer. This could include, for example, contract workers and workers employed by staffing agencies who perform direct production work. This approach is consistent with the treaty text, which emphasizes whether employees are directly involved in production work, see Automotive Appendix, Article 7.3 n.77, not whether they are directly employed by the producer or another entity. In addition, § 810.120(b) promotes transparency by helping ensure that all direct production work is included in the average hourly base wage rate calculation, regardless of how a working relationship is structured. As with the workers addressed in § 810.120(a), the inclusion of these workers’ hours will result in more representative calculations that more precisely reflect the actual average hourly base wage rates, which will allow the Department to accurately verify whether producers have complied with the high-wage components of the LVC requirements.

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