The Halliburton decision from earlier this year shows just how far employers are expected to go when screening and contacting applicants to U.S. recruitment efforts. This is one that seems crazy to me, but not for the main reason being discussed in the case. The case was originally denied (and, on appeal, remained denied) because the employer failed to contact an applicant to its domestic recruitment efforts, disqualifying him for lacking the requisite skills and experience for the job.
Ultimately, the DOL - and the appellate board - found essentially that his resume made it at least plausible he had the minimum qualifications and he should have been contacted. The case was denied for this reason.
And, if the applicant’s resume did make this baseline case of being qualified and he wasn’t contacted, then I’d think the denial was the right outcome. But there’s one section here that I found puzzling: the “[e]mployer argued that it had not unlawfully rejected Applicant SM because (1) he was not a U.S. worker, based on his resume (which showed a foreign address, education, and employer) and an on-line form so stating (not previously submitted).” The applicant acknowledged he was not a U.S. worker!
So, this seems like a pretty crazy decision. I get the need to protect U.S. workers applying for jobs, but if applicants acknowledge they aren’t U.S. workers, how is it appropriate to deny cases based on an employer’s decision not to contact a non-U.S. worker? That makes no sense to me. Arguably, the employer’s lawyer could have more forcefully made this argument earlier in the process. Regardless, the result here seems to cut against the two objectives of the DOL in this program - protecting U.S. workers and permitting compliant U.S. employers to hire foreign workers if all requirements are met. The result here does neither.
With that said, the lesson (as always) is “better safe than sorry” and to contact every applicant prior to disqualifying anyone.
Originally published here: https://www.permlabor.com/blog/screening-of-job-applicants