An issue that commonly comes up is how employers already advertise for the jobs they intend to fill through the PERM process and whether any tweaks are needed. A common area for this is desired - but not formally required - characteristics of an employee.
BALCA took this issue up recently in the G&G Outfitters, Inc. case.
This is an area of the law where the PERM regulations and real world business realities collide. A longstanding holding in labor certification matters is that “employer preferences are actually job requirements.” This is sounds a little crazy, but I think that the idea behind it is that the DOL needs to determine and understand the true minimum qualifications needed to do the job (under 20 CFR 656.17(i)) in order to make a final determination that there aren’t enough US workers for it and it can rightfully be filled by a foreign worker. I don’t think that’s the best way to do it, but I would guess that’s the rationale behind it.
In the real world, one area in which this comes up is the preference for a HS diploma or GED for a lot of positions. As you can see from the above, listing it as a preference will turn it into a requirement in the eyes of the DOL. Then the employer would be responsible for showing a nexus between the HS degree and the job duties, which might be challenging. In addition, the employer would need to show that all of its workforce in the position for which labor certification is being sought hold that qualification (which may not be true, in which case it wouldn’t be considered a requirement and should not be listed in any ads or postings).
Anyway, returning back to the G&G case, they listed “committed to long-term employment” as a requirement in the ads. This became an issue when they said they rejected an applicant for not possessing this trait. The DOL’s main issue in this particular case was that they couldn’t figure out exactly what this meant and thus couldn’t figure out what the actual requirements of the position were. This case was denied and that denial was affirmed by BALCA.
Now, this situation seems avoidable. The big suggestion to employers and practitioners would be not to include amorphous descriptions in ads or the labor certification applications; have everything you’re requiring be easy to understand and readily clear. Secondarily, it’s always important to audit existing ads and future ad text before starting the formal recruitment process. It does not matter if you listed “HS diploma preferred” on your website a year ago. What matters is what the ads say during the PERM recruitment process. So when it comes time to place ads, employers and their lawyers should go through existing ad text carefully and basically be paranoid in auditing to ensure that a) all the minimum requirements are clear, and b) everyone understands that “wants” in ads will be considered requirements and conduct everything accordingly with respect to that.
We originally published this here: https://www.permlabor.com/blog/job-requirements-wants-vs-needs