Likely owing to COVID-19, there seems to have been relatively few decisions published by BALCA in March through the present. The Board had been making substantial progress on a large case backlog, but that seems to have been paused, at least temporarily.
One decision of not is the Lenora Systems one, which you can read here. A software company filed PERM’s for several app developers. In three out of those, the cases were denied because the employer failed to respond to emailed audit requests. The employer stated they never received the emails and, furthermore, would have no reason to not respond to them since they had received other audits for identical positions using the same round of recruitment. The DOL countered by saying there was a presumption of delivery of the emails and the employer was out of luck.
Ultimately, this case is a discussion of “the mailbox rule,” a presumption of delivery that has been developed in common law over many years (and something most lawyers reading this will likely not have had reason to think about since law school). The presumption in the case of emails is in favor of delivery - if an email was sent, it was likely received? But the key questions here is whether the presumption of delivery weak or strong? Meaning, can an employer (or recipient of any mail/email) prevail by simply saying “I didn’t get it?” Or must the employer present additional evidence in support of not receiving it? Or is the simple fact the send didn’t get a bounce-back or nondelivery notice sufficient to assume the email was delivered?
On this topic, BALCA has been both somewhat inconsistent and generally in favor of delivery in recent past cases. However, here, they took a very exhaustive look at what happens in the federal circuit courts, which also varies somewhat. Applying the stances of those courts to the fact here, they found the combination of the employer claiming non-receipt and the fact other identical audits were responded to based on the same round of recruitment to be sufficient to send the cases back and allow for the employer to respond to the audit requests. For employers and lawyers doing batches of workers (ie. multiple positions based on the same round of recruitment), this is a positive decision and a fair one, though it likely would be harder for an employer/lawyer in a single position case to make the same arguments.