A case involving an Italian deli in Staten Island, NY was recently decided by BALCA. The denial decision of the original officer was upheld; this case illustrates the point that, essentially, an employer cannot establish overly burdensome qualifications for mid- or entry-level roles in order to effectively scare off potential domestic applicants. Here is a link to the Decision.
To summarize the facts, the deli wanted to hire a cook and stated that no education was required, but at least 4 years of relevant experience was necessary. The DOL pushed back and said “prove it,” noting internal DOL guidance states that the relevant experience typical of such a position was a few months, up to a year. The employer’s argument was that, since there would not be additional more senior staff in place to train the beneficiary (the person for whom the application was filed), it was justified in demanding that experience level. The DOL disagreed, the employer appealed and provided a statement from the owner about the need for this experience level, and ultimately the appeal board sided with the DOL and the application remained denied.
A couple of comments on this generally. First, in a smaller business, it’s going to be tough to show how exactly four years experience is going to be necessary (as opposed to one year or three or five). Without a more robust hierarchy internally, falling on an exact number that varies considerably from what the DOL thinks is reasonable is going to be a challenge. Here, the employer submitted a statement describing his own experience. This was never going to be enough. At a minimum, you’d need third-party documentations and perhaps even an expert (which, at a certain point, is that even cost effective?). Second, I don’t think this one was even close to the line and it seems like an odd choice to appeal it. Here’s a summary of the key point: “a demonstration of business necessity required more than a showing that a requirement would contribute to or enhance the efficiency and quality of the business and can only be made under § 656.17(h)(1) on proof that a requirement is ‘essential to perform the job in a reasonable manner.’”
That last part is a key thing for employers (and lawyers and agents) to keep in mind while establishing hiring criteria. In the real (non-PERM) world, you always see ads with statements like “2+ years of experience” or “1-3 years of experience” and these serve a valuable purpose of weeding out some unqualified applicants. When it comes to advertising for PERM positions, it’s important to think back on all details like this and figure out whether you as an employer can truly establish whether such requirements are actually essential to someone being able to fill the role.
Originally published here: https://www.permlabor.com/blog/what-are-the-true-minimum-qualifications-needed-to-fill-a-position