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

Work From Home Arrangements

Recent BALCA decisions have not really touched on issues important to our clients meaningfully, but I also did not want to go too long without posting something new one here, so we’ll take an issue that is potentially relevant to a lot of employer’s in today’s economy.

The case involves an application filed by Thomas & Betts Corp. for a sales position where the person travels extensively in the US and internationally. The application listed the employee’s home address in Atlanta - as opposed to corporate HQ in Memphis - as the primary worksite. The DOL then misapplied its own previous guidance on “unanticipated worksites” (called the Farmer Memo) and said the application should be denied because the wrong address was listed.

The decision of the DOL officer was reversed on appeal, which I agree was the correct call. The employer went to great lengths to make sure everything was done properly here (newspaper ads in two major metro areas) and they did list the proper address since it was not so much an “unanticipated worksites” case as one where the incumbent could telecommute and work-from-home.

The key commentary in the decision, in my opinion, is:

While there may well be sound administrative reasons for requiring an employer to treat a position that allows an employee to work from home as having a worksite location at the employer’s headquarters for PWD and recruitment purposes, OFLC has not clearly or consistently notified employers of this requirement. As the Employer correctly notes, the guidance provided during the March 15, 2007 Stakeholder’s Meeting stated that in the case of a telecommuting position where the employee is not required to live in a location specific to the job, the worksite is the employee’s home, and the PWD and recruitment would be for the worksite, not the employer’s headquarters . . . Since nothing in the PERM regulations or in any guidance adequately notified employers of a requirement that an employer must use its headquarters as the worksite location for job opportunities that offer the employee the unrestricted opportunity to work from a home location, we conclude that the CO erred by enforcing such a requirement on the unsuspecting Employer. See Infosys Ltd., 2016-PER-00074, slip op. at 11 (May 12, 2016).

We originally published this blog here: https://www.permlabor.com/blog/work-from-home-arrangements

Screening of Job Applicants

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

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