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

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