What Are The True "Minimum Requirements"

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

Ads for Multiple Openings of the Same Position

Decided last month, the Doubleverify case discusses the required nexus between ads and job duties when one ad covers multiple positions.

In our context, let’s say this covers a building services company that wants to hire janitors and landscapers or a shipping facility that wants to hire multiple positions (order picker, order packer, material handler, etc.). The basic premise is that an employer can save (a bit) on ad costs particularly in newspapers when advertising the roles together.

This case strikes me as kind of an avoidable situation in the first place by the employer/attorney because it did not specifically list some of the exact job titles in the ads. This is not a great idea. The ultimate allegation by the DOL was that, because the titles weren’t listed, there was not enough specificity in the ads to reasonably apprise potentially-interested US workers as to the vacancies.

Ultimately, the employer prevailed. The regulations don’t require the exact job title be listed (“Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought”) and there’s further a DOL FAQ, which although nonbonding, that appears to confirm this. So fortunately, the employer won out here. But of course, as mentioned above, this whole things seems kind of avoidable because why would you not list the title of the position fully? Anyway, the right result was reached… just a lot further along down the road.

Originally published here: https://www.permlabor.com/blog/ads-for-multiple-positions

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