Problems Caused by Clunky Job Posting Websites

The most recent batch of BALCA decisions was not terribly interesting, but I did come across the ViewSoft, Inc. case that features an issue that comes up regularly and deserves a bit of consideration. In this case, the job requirements were either to hold: 1) master’s degree in the relevant field, or 2) a bachelor’s degree in the same field as well as having a few years of experience. (I’m being deliberately vague here because the actual requirements for the position are not the point).

Anyway, the ViewSoft, Inc. application was initially denied because the job posting on the State Workforce Agency (or “SWA,” which in this case was the Virginia Workforce Connection) officially listed only the master’s degree requirement. The conclusion of the DOL officer was that failing to list the alternative potential minimum qualifications could have improperly dissuaded potential US applicants.

The critical issue here, though, is that the “education level” here was selected from a drop-down menu where the options were only education levels (and not “education, plus experience”). This is an issue that comes up regularly in the recruitment process for PERM cases. Virginia is one of many states where the SWA job posting system is made from the same template. Virginia and Maryland, for example, are basically identical interfaces where the only difference is color scheme. I’d bet at least half and maybe 2/3rds of states are on the same system and it’s really not at all user-friendly. It feels like it was designed in like maybe 2000 and, especially compared to the customization options on Indeed or Monster.com or LinkedIn or wherever else ads might be placed in 2019, it can be a clunky experience and somewhat frustrating.

Ultimately here, the Board sided with the employer and concluded that “[w]hile the Employer could have put the alternate requirement in the duties section of the job order, that is not how the job order was designed to be completed and we hold that an application cannot be denied because the Employer followed the job order instructions.” The DOL officer had suggested that the employer should have listed the alternative qualifications in one of the boxes were job duties are described, but, as you can see from the above, the Board thought that was a step too far.

Originally published here: https://www.permlabor.com/blog/problems-caused-by-clunky-job-posting-websites

When (or If) To List Ancillary Requirements (Drug Testing, Background Checks, etc.)

One of the topics we touch on time and again is the conflicts between advertisement (or notice) text and what is listed on the PERM application, Form 9089. The recent Sprint Nextel Corp. decision provides a good real world example of the factors at play. In that case, the issue that arose was whether the employer was required to list that an employee in the position in question needed to pass a drug test and background check. The employer had listed it on the PERM application, but not in its advertisements and Notice of Filing.

Ultimately, the decision was that the application should have been approved and it was fine for the employer to miss that requirement in its ads and Notice of Filing. This builds upon a substantial amount of predecessor case law which, consistent with the regulations, states that ads need not contain every single, nitty-gritty detail of what a job entails - only that they need to be specific enough so as to apprise U.S. workers of the opportunity.

The decision of the Board was that the employer “provided a complete description of the job opportunity that was specific enough to apprise the U.S. workers of the job opportunity and its omission of a reference to background and drug screening did not in any way undermine that effort or render the NOF incomplete.”

The predecessor case I mentioned above is Architectural Stone Accents, Inc., 2011-PER-02719 (July 3, 2013), which I cannot link to (there’s a weird black hole between 2010 and 2015 when mostly decisions pick up again where only the en banc cases are posted). But in that case, the PERM form listed a Spanish language requirement that was not listed on the ads. The decision there was that the omission of the Spanish language requirement did not violate § 656.17(f)(3), as “overall the text of the NOF was sufficient to apprise U.S. workers of the job opportunity.” The same was true in the Sprint Nextel case.

This topic overall is a bit of a tricky one for employers that do drug testing in particular (like trucking companies, for example, regularly have this issue come up) because it’s really hard to say exactly when or how this topic should be raised to domestic candidates. Do you put it in the ads? Do you mention it only after an offer is made? Based on that, what information do you enter in the various forms? These are all fact-specific situations that may vary from employer to employer based on their unique circumstances.

Originally published here: https://www.permlabor.com/blog/when-of-if-to-list-ancillary-requirements-background-check-drug-test-etc

Balancing Required Descriptions with Practical ($$$) Considerations

In a recent case found here, BALCA reversed a denial where the employer did not list every single required bit of educational/experiential requirement in the newspaper advertisement. This was obviously the right result because not listing these things would have no negative impact such as chilling or reducing applications; if anything, it would have the opposite impact.

While this case may seem irrelevant to employers hiring entry-level and blue collar positions via this program (since the case revolved around an IT position requiring a degree and experience), it is nonetheless instructive because it highlights the real-world balancing act when it comes to placing newspaper advertisements, which can be quite costly.

Employers in smaller markets enjoy very reasonable pricing when it comes to newspaper advertisements. I’ve worked with employers in smaller markets like Annapolis, MD; Biloxi, MS; and, Grand Rapids, MI. In those locations newspaper ads often run less than $250. However, in the largest markets like New York and San Francisco, a simple ad might run 10 times that much! In addition, for some reason, a few random markets have unusually high ad costs (Pittsburgh and the entire state of Texas come to mind). Anyway, when paying by the letter or character, literally everything that goes into the ad counts. In all cases, we work hard with employers to craft text that says as much as is necessary under the law… in as little space as possible. How concise we can get the ad ultimately depends on two things - the job duties and the requirements (and arguably a third - the number of ways in which the employer is prepared to accept responses/inquiries). In these situations, it’s important for the employer to differentiate between “actual minimum requirements” and “wants.” Usually, we can communicate effective such that we can understand where the lines between those two things are and thus boil the ad text down as best we can. And in these cases, the savings can be significant - 50% or more.

Of course, we all have to be careful to list all actual requirements. But the purpose of this case - which was wrongly denied in the first instance - is to show that the purpose of being careful with the ads is to make sure an employer’s ads are not scaring off any prospective employees. You do that by listing overly restrictive qualification requirements; not by keeping your ads brief and concise (which keeps costs down as well).

Originally from July 2019, published at: https://www.permlabor.com/blog/balancing-required-descriptions-with-financial-considerations

(Almost) Every Penny Counts

This is a recent case involving a fast food restaurant and truly tiny differences between the prevailing wage determination’s result and the subsequent notices. In this case, the amount was twenty cents a year and that tiny discrepancy was really the result of rounding (ie. converting a salary stated as annualized in the prevailing wage determination to hourly).

Ultimately, some measure of common sense prevailed even though there was this tiny discrepancy. The conclusion was that there’s no conceivable way a misstatement of twenty cents over the course of a year could have had a “chilling” impact on U.S. workers.

This seems like the right result. There were some additional factors and solid arguments made by the employer’s lawyer that contributed to the Board’s decision here, but you can also see this case going the other direction potentially.

Two notes here (mainly for lawyers more than employers). First, obviously this highlights just how exacting this whole process is here. I mean, just think about how many hours of government time was spent here over a misstatement of $0.20. It’s just incredibly inefficient if you think about it, but anyway, that’s how strictly the rules are enforced. Second and perhaps not as obvious… if your employer phrases their pay as hourly, which tons of employers with schedules that change week-to-week do, ALWAYS make sure to add a note in the prevailing wage request that you wish for the Determination to be issued by stating an hourly wage. On Form 9141, you do this at Section E, subsection b, space 5 which is “Special Requirements - List specific skills, licenses/certificates/certifications, and requirements of the job opportunity.” Assuming there aren’t licenses required, you would enter something like: “None. Request HOURLY wage determination if possible, please.” In those cases, you should get the wage determination issued as hourly and that will allow you to avoid any rounding pitfalls like we saw here in this case.

Originally from June 2019, published at: https://www.permlabor.com/blog/almost-every-penny-counts