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

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

The Newspaper of General Circulation

In all PERM cases, the position must be advertised in the local newspaper of “general circulation.” This situation often creates a quandary for employers because they want to get this right, but also want to spend as little as possible on the advertisements. So the question because “do I advertise in the New York Times or the New York Post?” or “do I advertise in the Washington Post or the Washington Examiner?” The Post/Examiner situation in Washington seems to have been litigated extensively in recent cases that I’ll comment on below (though apparently the Examiner no longer publishes a Sunday edition so this specific issue of tension no longer exists).

The basic applicable law on this topic can be found at Section 656.17(e)(2)(ii), relating to newspaper advertisements. It requires, as a pre-filing requirement for nonprofessional occupations, under subsection (A), “[p]lacing an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity.” For professional occupations, there is the additional requirement that thenewspaper be “most likely to bring responses from able, willing, qualified, and available U.S.workers.” 20 C.F.R. §656.17(e)(l)(i)(B)(l).

My advice to employer clients is always: “You cannot go wrong by choosing the biggest paper in the area, so it’s really in your best interest to pony up the money,” even if it’s 3-4x what the little brother paper would cost. Easy for me to say since it’s their money, not mine. But still, the reality is that there is generally only going to be one newspaper that fits the bill in a region. If you go with a different one, you’re definitely risking denials at the PERM stage. If those cases are denied, getting them overturned would be an uphill slog… and would take years and be pretty costly (more than the differential of cost between the obviously ideal paper and the other option you might wish to argue could fit the definition).

Anyway, here was one local [note: not anymore] case in Manassas that was actual overturned on this Washington Post/Examiner issue. But the only reason why was that the DOL officer who initially decided the case cited the wrong section of the law in his or her decision and did not back it up with any analysis. So this was a win, but it was on a technicality and clearly would have gone the other way if the officer had given either the right section of the law in his or her decision OR if they gave any details as to “why” they were concluding as they were.

This was another interesting decision (and again local). In this case, the position was a server at a country club and the job was advertised in the Washington Examiner. The employer successfully argued that was the most appropriate place to advertise for the position. The argument was that it was a free paper, so an unemployed person looking for a job would be more likely to look there than in the more costly Sunday edition of the Washington Post. I don’t know how compelling that is (but then again, who is really looking for jobs in print newspapers in 2019, though the law still requires posting in them). Anyway, for the employer, I suppose all’s well that ends well. On the other hand, this decision runs through a number of similar decisions that resulted in conflicting law on the topic.

The key takeaway is that a lot of this can go either way. I also think the law is really tricky here. The idea is that only one newspaper can be considered the one of “general circulation” and thus be the appropriate venue. While you generally cannot go wrong going with the biggest local paper, these decisions where BALCA essentially concludes a secondary paper is “the best” (and thus only appropriate) place in which to advertise a position are troubling. But anyway, I tend to think that’s only something that comes along at the end of this process, and only when a secondary paper is chosen in the first place. I do not really think an employer can go wrong (in almost all cases) by just choosing the biggest local paper and advertising there because I don’t think a certifying officer at DOL will see “Washington Post” (or whatever) and want to take on a fight that the ad should have been elsewhere; it’s only when the ad is placed elsewhere that this discussion seems, in reality, to come into play.

Originally published here: https://www.permlabor.com/blog?offset=1562593855982&reversePaginate=true