The Rules are the Rules

Linked here, you will find a Decision that defies all common sense and logic, but highlights the lengths to which the DOL and the Board will go to demand strict compliance with the letter of the law.

In the Weck case, the Board upheld a denial based on a discrepancy where the offered job paid 80 cents per year than the prevailing wage determination would have required. On its face, this is crazy. While I understand the interest in holding to the precise language of the law and the Board’s general unwillingness to create a test to determine what is or is not “substantial compliance” with the legal requirement, we’re talking about about less than 4 pennies per pay period.

With that said, a couple comments:

• In many positions, it behooves the employer to request an hourly determination and make the offer on that basis. This helps in making sure the prevailing wage is complied with because these are always issued down to the penny.

• If you’re doing simultaneous recruitment while awaiting the wage determination, it is usually best to make sure the offer is not at the bare minimum, if at all possible, because the DOL wage data can flip over to the next year while you’re awaiting the determination and then mess up the recruitment (ie. too low a wage listed on the Notice of Filing posted at the worksite).

• There have been past decisions at odds with how this one came out, for whatever that’s worth (not much to the employer and employee here, of course).

Little Action at BALCA in Recent Months

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.

Screening of U.S. Applicants Based on Job Requirements

There was a recent case involving a Las Vegas resort seeking to hire someone in their Human Resources department that discusses how employers can permissibly screen out applicants lacking the minimal qualifications for the job at issue. In this case, BALCA reversed a denial based on an employer’s failure to interview two applicants who had considerable experience but did NOT hold the required degree (in HR). The main idea is that employers are not required to interview applicants who lack a primary job requirement. In this case, it was a specific degree, but really it could be anything (a license, other specific capabilities, etc.).

The Parball decision can be found here. Here is the main quote:

In this case, we recognize that the two applicants, and in particular P.R.1, have substantial job-related experience which could support a conclusion that they might qualify for the position even absent the specified degree and therefore, superficially, it might seem that further inquiry was warranted. That, however, is not what the case law requires. As first enunciated in Gorchev, the obligation to interview is triggered when the U.S. applicant meets the principal requirements for the position but lacks some subsidiary skill that might not be listed on the resume or could be learned through a reasonable period of on-the-job training. These are not the facts here. These two applicants lacked a specified bachelor’s degree and therefore no further inquiry was required. Accordingly, the CO erred in denying certification in this matter.

So, in other words, one of the applicants was almost certainly “qualified” using the real world definition, but not the PERM definition of that word; the law is clear that educational requirements set by employers (or other requirements) can be taken as firm and anyone failing to meet them may lawfully be screened out.

We originally published this blog entry here: https://www.permlabor.com/blog/screening-of-us-applicants-based-on-job-requirements

Even Local "Travel" Counts as Travel

A case out of Louisiana was released recently that highlights one key issue we see when working with janitorial services and home health care agencies (and any other businesses that involve employees traveling among local client sites). While Pediatric Associates of Acadiana involves a software engineer, the issue of local travel requirements came up. What was fatal in this case was that the ads they placed clearly stated that “Minor travel may be required for deploying, training and demonstrating the product at our locations in Lafayette, St. Martinville, Breaux Bridge, New Iberia, Carencro and Scott, LA.” However, these requirements were not listed on the PERM application and consequently the certification was denied.

In this particular case, the employer made two arguments to try and overcome the DOL’s initial denial. The first was that, since the travel was all within the same metropolitan area, it was not really “travel.” On a logical level, that’s hard to dispute. However, that is not the way the case law has come out and there’s a case that says the opposite, in fact. There, the statement “[o]ccasional day travel within San Antonio Metropolitan area and/or to Corpus Christi, Texas. No Overnights” constituted a travel requirement for the purposes of the PERM statute. (That’s from Riverwalk Education Foundation, 2012-PER-02882, if you need a cite).  Again, I don’t think that makes a ton of sense, but that’s the law. The second – and far less compelling – argument made was that travel could have been inferred from the job duties. You might see a case where that’s true at some point, but this one was not going to be it (it involves a software engineer that appears to make record or billing programs for local doctors and the argument was that he’d have to go around and do demonstrations and trainings). So, not the strongest argument. But I thought the first one was pretty strong.

Anyway, travel like this is something we must be careful on when we are talking about locally-roving employees and it comes up at multiple steps in the process. First, it needs to be disclosed in the prevailing wage (twice – in the body of description text and in the dropdown menus at the end about multiple worksites). Then, it has to go in the ads, which is a pain because it’s an added cost due to increased text necessary. Finally, it has to go on the PERM. For janitorial and home health care agencies, my stock language is “Positions are based in [city], but involve daily travel to worksites within [descriptor – county, metro area, or specific area].”

Just another reminder to be as detailed as possible at all stages of this process to make sure all the necessary disclosures are being made.

We originally published this one here: https://www.permlabor.com/blog/even-local-travel-counts-as-travel