In Yaron Development Co., Inc., 89-INA-178 (Apr. 19,
1991) (en banc), the Board stated what elements are needed
in a recruitment report to establish proper attempts to contact
U.S. applicants. In general, the report must indicate what
attempts the employer made to contact the applicants, and include
details such as:
when or how many times it attempted to contact the
applicants by phone;
whether the attempted contacts were to the applicants'
place or business or home;
with whom a message was left, if any, and what the
message was;
whether the employer attempted alternative means of
communication, such as a letter.
In Relief Printing Company, 89-INA-346 (Jan. 23,
1991), it was held that the employer's unsuccessful attempt to
contact an applicant's previous employer by telephone was an
insufficient attempt to investigate the applicant's credentials,
as the employer could have tried to contact the previous employer
by letter or could have contacted the applicant himself.
Contacting an applicant by speaking to the applicant's
spouse on the phone, and being told by the spouse that the
applicant is not interested in the job, is not a reasonable
effort to contact the U.S. applicant. Such third-party
communication is not sufficient, as the employer did not prove
that it made any contact with the applicant. Dove Homes,
Inc., 87-INA-680 (May 25, 1988) (en banc). SeealsoBritish Body Craft, 88-INA-439 (June 6, 1989)
(employer's rebuttal acknowledged the possibility that another
applicant expressed lack of interest or someone in the
applicant's household stated disinterest in the position).
An employer's attempts to call the applicant at the home
number only, when the employer also had the applicant's work
number and the home and work addresses, does not constitute a
reasonable effort to contact the applicant. Further, the
subsequent determination that the applicant was not at that
number does not cure the initial poor effort. Bruce A.
Fjeld, 88-INA-333 (May 26, 1989) (en banc). Similarly,
two attempts to call one of the numbers provided by the applicant
(and leaving a message), when the applicant also provided another
phone number and her home and work address, is insufficient as an
attempt to contact the applicant. Bay Area Women's Resource
Center, 88-INA-379 (May 26, 1989) (en banc).
SeealsoYaron Development Co., Inc.,
89-INA-178 (Apr. 19, 1991) (en banc) discussed
supra Division IV, A, 1.
In Alliance Welding and Steel Fabricating, Inc.,
90-INA-57 (Dec. 17, 1990), the panel held that an employer's
attempt to call the applicant during office hours at the
applicant's home number, when the employer also had the
applicant's home address and work address, was not a reasonable
effort to contact the applicant. The employer was on notice that
the applicant might not be reached at his home during office
hours, as his resume showed that he was currently employed.
In Relief Printing Company, 89-INA-346 (Jan. 23,
1991), the employer unsuccessfully attempted nine times to
telephone an applicant's former employer to verify his
experience. The CO, however, was able to contact the employer
simply by calling directory assistance to obtain a new telephone
number. In affirming the denial of certification, the panel held,
interalia, that "At the least, the Employer
could have called directory assistance, as did the CO, and gotten
the correct phone number."
In Bucks Bit Service, 89-INA-140 (Jan. 3, 1990), an
allegation that the employer did not know the applicants'
addresses was found to be insufficient where the employer could
have obtained the addresses from the state job service.
Confusion created by the employer as to where the interviews
are to take place, and interviewing applicants at the wrong
locations, indicates a lack of good faith in the recruiting
effort. Suniland Music Shoppes, 88-INA-93 (Mar. 20, 1989)
(en banc).
The Board remanded a case where the employer and the
applicant were both mistaken as to the date of interviews, as a
result of the employer's contact with the applicant. Bolton
Electric, 88-INA-192 (Dec. 22, 1988) (en banc).
Where the employer offered unclear statements as to whether
it had contacted applicants, and did not adequately explain how
mistakes concerning the location of possible interviews were
caused or resolved, the panel held that the employer failed to
document its good faith efforts to recruit U.S. workers.
Joshua Klein Refrigeration, 89-INA-194 (Dec. 11,
1990).
In Dr. Ina S. Wallen, 90-INA-223 (Dec. 20, 1991), the
panel found that the employer improperly discouraged a U.S.
applicant's interview for a housekeeping position. Evidence
showed that the applicant appeared at the designated place for
the interview and that she waited several hours for the employer
before leaving. The panel found that, without supporting
documentation, the employer's explanation that she was appearing
for trial or deposition at the scheduled time was unpersuasive.
Reasonable efforts to contact qualified U.S. applicants may,
in some circumstances, require more than a single type of
attempted contact. Diana Mock, 88-INA-255 (Apr. 9, 1990).
For example:
In Diana Mock, 88-INA-255 (Apr. 9, 1990), the
panel held that where there were only two applicants, and
they both provided their phone number, a reasonable effort
to contact should have included phoning rather than just
mailing a letter, especially when there was confusion over
one of the mailing addresses.
In Any Phototype, Inc., 90-INA-63 (May 22,
1991), the panel held that an employer who does no more than
making unanswered phone calls or leaving a message on an
answering machine has not made a reasonable effort to
contact the U.S. worker, where the addresses were available
for applicants (the panel explained that a certified letter
would have been a minimally acceptable additional
effort).
In Sierra Canyon School, 90-INA-410 (Jan. 16,
1992), the panel held that the employer should have
attempted to contact U.S. applicants for a maintenance
worker job by telephone after none of them responded to its
certified letter. Although certified mail may be a proper
means for contacting U.S. applicants, a reasonable effort to
contact applicants in this case was found to require more.
The employer had the telephone numbers for eight of nine
applicants for a position requiring no experience or
training, and none of the applicants responded to the
employer's certified letter.
SeealsoYaron Development Co., Inc.,
89-INA-178 (Apr. 19, 1991) (en banc); C'est Pzazzz
Industries, 90-INA-260 (Dec. 5, 1991) (should have sent new
letter, where first letter was mailed and returned in an envelope
that was
incorrectly addressed); S. Balian Designs, 89-INA-299
(Sept. 20, 1991) (should have attempted phone calls after alleged
mailing); Gambino's Restaurant, 90-INA-320 (Sept. 17,
1991) (should have attempted mail promptly after phone calls were
unsuccessful).
In its contact with the applicant, an employer should not
discourage the applicant. Noh Mask and Unfolding Futon,
89-INA-144 (Feb. 7, 1990) (employer told applicant the position
was not permanent and that the applicant would soon have to look
for a new job).
In Sierra Canyon School, 90-INA-410 (Jan. 16, 1992),
the panel held that the employer should have attempted to contact
U.S. applicants for a maintenance worker job by telephone after
none of them responded to its certified letter (which had
required the applicants to complete applications after they had
submitted resumes). In this case, the certified mail letter was
viewed as an additional hurdle (completing the application). The
employer had the telephone numbers for eight of nine applicants
for a position requiring no experience or training, and
none of the applicants responded to the employer's
certified letter. The panel noted that the employer made no
attempt to evaluate the applicants based on their resumes.
SeealsoMichael Alex, 90-INA-414 (Dec. 9,
1991) (contact letter required a reply with a completed
application); Ander Trading, Inc., 88-INA-356 (Dec. 22,
1988) (remand where rejected U.S. applicant alleged that employer
offered her less than the advertised wage, but an ambiguity
existed as to the source of the applicant's statement and the
circumstances surrounded the alleged offer).
An employer must provide the applicants with an appropriate
opportunity to respond to the employer's contact. Thus, where the
only method provided of contacting the employer is through an
answering machine, and where the applicants experienced
difficulty in contacting the employer or receiving calls back
from the messages, the employer did not make a reasonable effort
to contact the applicants. James Ganley Builders,
88-INA-343 (July 28, 1989).
Where an employer failed to include its name or phone number
on the contact telegrams, and misspelled the contact person's
name, such a contact amounted to a lack of a good faith effort to
recruit. Budget Iron Work, 88-INA-393 (Mar. 21, 1989). To
the same effect, Michael Alex, 90-INA-414 (Dec. 9, 1991)
(the employer forced applicants to respond by mail with
applications for housekeeping position, but misstated the
employer's name or phone number so that no phone inquiries could
be made).
Under some circumstances, however, defects in a letter
directing the applicant to contact the employer have been
excused, such as where an alternative means of communication was
provided,
Hoover Electric Co., 88-INA-315 (June 6, 1989)
(the absence of the employer's telephone number from the
contact letter, by itself, is insufficient to show a lack of
good faith, where the employer did provide its name, address
and a contact person and set forth the job title
(distinguishing Budget Iron Work,
supra)).
or where the employer established that the applicant was
unavailable at the time of initial recruitment.
Bada Apparel, 87-INA-712 (Apr. 13, 1988) (one
applicant could not respond back to the employer because of
a miscommunication in the employer's contact letter).
In Simon's Precision Machine, 88-INA-105 (July 31,
1989), it was held that a letter requesting that applicants call
the employer if the applicants believed they had the
required experience is permissible, where the applicants were
given ample opportunity to respond. The employer may reject those
who do not respond, since failure to respond indicates
disinterest or inexperience. SeealsoLight Fire
Iron Works, 90-INA-2 (Nov. 20, 1990) (applicant had signed
certified mail receipt, but never contacted employer).
An employer must give the applicants adequate time to
respond to the employer's contact concerning interviews.
Tempco Engineering, Inc., 88-INA-101 (June 20, 1988)
(three days from the date of the employer's letter was
insufficient, and thus the applicants' failure to respond to the
request for an interview was not a ground for rejecting the
applicants); Michael Alex, 90-INA-414 (Dec. 9, 1991) (four
days not sufficient time to respond with completed application
for housekeeping position); Galletti Brothers Food,
90-INA-511 to 90-INA-516, 90-INA-531 to 90-INA-566 (Apr. 30,
1991) (certified letters received on March 9, 11, 17 and 19
afforded a wholly insufficient time to respond by March 11);
Super K-Q 1540 A.M., 90-INA-441 (Mar. 13, 1991).
The burden is on the employer to substantiate its assertion
that it made contact promptly with potentially qualified U.S.
applicants. Flamingo Electroplating, Inc., 90-INA-495
(Dec. 23, 1991); Klausner Transportation Co., 90-INA-46
(Apr. 29, 1991); Venk Jewelry, 89-INA-348 (July 30, 1990);
Harvey Studios, 88-INA-430 (Oct. 25, 1989). The burden is
on the employer to adequately document its attempts to contact
U.S. applicants and explain why other methods were not used.
OKO Corporation, 90-INA-196 (May 16, 1991).
On the other hand, the burden is on the CO to identify which
apparently qualified applicants were allegedly not available
because of the employer's late contact. Failure to identify the
apparently qualified applicants prevents the employer the
opportunity to rebut. SeeJB Trading House, Inc.,
88-INA-387 (Mar. 28, 1990).
A recruitment report must describe the details of the
employer's attempts at contact of applicants to be sufficient.
SeeYaron Development Co., Inc., 89-INA-178 (Apr.
19, 1991) (en banc), described in more detail supra
Division IV, A, 1.
Thus, an employer's recruitment report may be insufficient
where it merely asserts that the applicant was unavailable
without proving contact,
Annette Gibson, 88-INA-396 (June 20, 1989).
lacks detail regarding the effort at contact,
Venk Jewelry, 89-INA-348 (July 30, 1990) (did
not detail dates or times of calls or offers to interview,
or who made the calls).
Hopewell Co., 89-INA-190 (May 23, 1990)
(allegations of telephone contact are insufficient, with no
support of who made the calls or what was said in the
conversation).
Harvey Studios, 88-INA-430 (Oct. 30, 1989) (the
employer only showed copies of a one-sentence memo allegedly
sent to two applicants, and stated that it left a message on
a third applicant's answering machine).
lacks documentation of the contact efforts,
Yaron Development Co., Inc., 89-INA-178 (Apr.
19, 1991) (en banc) (report failed to indicate when
or how many times the employer attempted to contact the
applicant by telephone, whether the attempt was at work or
home, what (if any) message was left, or whether alternative
means of contact were attempted).
Carriage House Realtors, 87-INA-739 (Apr. 5,
1989) (the employer failed to produce "notes" it
claimed to have made regarding phone calls to two applicants
who stated they were not contacted).
is ambiguous,
Joshua Klein Refrigeration, 89-INA-194 (Dec.
11, 1990) (the employer offered unclear statements as to
whether it had contacted applicants and did not explain how
mistakes concerning the location of possible interviews were
caused or resolved).
or contradicts the applicant's description of the contact.
K Super K-Q 1540 A.M., 90-INA-441 (Mar. 13,
1991) (the employer stated that two U.S. applicants failed
to appear for an interview and a third could not be
contacted, but questionnaire responses by the three
applicants revealed that the first two were interviewed and
the third was contacted by the CO and responded
thereto).
Venk Jewelry, 89-INA-348 (July 30, 1990) (U.S.
applicant indicated he had not been contacted).
Robert B. Fry, Jr., 89-INA-6 (Dec. 28, 1989)
(applicants indicated they were not contacted).
For a discussion of the weighing of conflicting statements of
applicants and employers, seeinfra Division IV, C,
2, b.
In contrast, with adequate explanation or documentation, an
employer may show that it contacted, or made reasonable efforts
to contact, U.S. applicants. For example, in the following cases
the employer documented that it could not have contacted the
applicant:
Drs. Patel and Karia, 88-INA-565 (Mar. 8, 1990)
(state job service gave the employer incorrect address and
phone number to contact applicant).
Ankitson Development Corp., 88-INA-452 (Jan. 3,
1990) (the employer was given no address or number for one
applicant).
Sizzler Restaurants International, 88-INA-123
(Jan. 9, 1989) (en banc) (evidence indicated that the
applicant's phone was disconnected).
An employer's narrative account of its efforts to contact U.S.
applicants carries some indicia of reliability. If the report
discloses internal inconsistencies, or improbabilities, its
truthfulness may be suspected; on the other hand, a natural
coherence of details would give the account at least an
appearance of truth. Cathay Carpet Mill, Inc., 87-INA-161
(Dec. 7, 1988) (en banc).
The employer asserted that it contacted a U.S. worker by
telephone and then by letter, a copy of which was in the record.
The CO disregarded the employer's statements to argue that
certified mail was the only means by which the employer
could prove its contact with the U.S. applicant. A panel
disagreed to state that "a C.O. is at liberty to contact
that U.S. applicant whom he/she believes was never contacted by
an Employer, and should not wantonly disregard the Employer's
otherwise documented assertion to the contrary." Lotus
Corp., 91-INA-203 (July 28, 1992).
Where an employer's statements concerning contact are
contradictory and unsupported, the CO may properly give greater
weight to applicants' statements that they were not contacted.
Robert B. Fry, Jr., 89-INA-6 (Dec. 28, 1989). However,
determinative evidentiary weight is not automatically given to
the applicants' statements that they were not contacted. Dove
Homes, Inc., 87-INA-680 (May 25, 1988) (en banc). For
example, in the following cases the employer's documentation of
its attempted contact was found to be more credible than the
statements by U.S. applicants:
Yedico International, Inc., 87-INA-740 (Sept.
30, 1988) (en banc) (where overwhelming
contemporaneous evidence showed that employer had contacted
applicants, the CO's denial based on two brief responses to
questionnaires prepared five months after recruitment period
was irrational).
Bayside Builders, 90-INA-290 (Jan. 7, 1992)
(where the employer's evidence (certified mail receipts, a
telephone log and narrative report) showed that efforts were
made to contact the applicants, the panel found the
employer's statements were entitled to more credibility than
the applicants').
Seealso Chapter 11, V, D (Evidence) regarding
the admissibility, authentication, burdens of proof and probative
weight of questionnaire responses.
Where the CO does not challenge the employer's reasons for
rejecting U.S. applicants, then the employer's failure to produce
resumes of applicants it interviewed and rejected is not a basis
for denying labor certification. Hollywood Tropicana,
90-INA-259 (Dec. 20, 1991).
An employer may prove that it contacted U.S. applicants by
producing copies of certified mail, return receipt requested.
Light Fire Iron Works, 90-INA-2 (Nov. 20, 1990), citing
Bel Air Country Club, 88-INA-223 (Dec. 23, 1988).
A CO must consider an employer's signed statements regarding
the mailing of a letter to a U.S. applicant, and may not deny
certification solely on the ground that the employer failed to
produce a post office stamp or money receipt for certified mail.
Bel Air Country Club, 88-INA-223 (Dec. 23, 1988), citing
Gencorp, 87-INA-659 (Jan. 13, 1988) (en banc).
If an employer requires applicants to appear for a personal
interview over a long distance, while refusing to pay travel
expenses or make some other arrangements, the employer may be
using the interview requirement as a means of rejecting U.S.
applicants. Such a requirement indicates that there is a lack of
good faith recruitment, prohibited under § 656.21(b)(7). The
Board has addressed this issue in two en banc decisions.
In Lin and Associates, Inc., 88-INA-7 (April 14,
1989) (en banc), while not deciding who must bear the
burden of travel expenses, the Board held that the employer must
take measures to reduce this burden, such as providing the
opportunity to be interviewed over the phone. Since the employer
made no such offer, the employer did not engage in good faith
recruitment.
In Hipoint Development, Inc., 88-INA-340 (May 31,
1989) (en banc), the employer rejected the U.S. applicants
because they failed to appear for interviews at their own
expense. As the employer failed to arrange other procedures to
mitigate the hardship of traveling expenses (such as paying the
expenses or arranging phone interviews), where the employer was
required to conduct more than local recruitment, the employer's
interview requirement indicated a lack of good faith recruitment.
Other decisions have found the interview requirement,
without travel reimbursement or other methods of interviewing, to
establish a lack of good faith recruiting:
Shameeza Embroideries, Inc., 89-INA-366 (July
18, 1991) (an employer does not engage in good faith
recruitment if it requires a personal interview but fails to
attempt to reschedule the interview to a mutually agreeable
time).
Vermillion Enterprises, 89-INA-43 (Nov. 20,
1989) (the employer also discouraged replies to its contact
letter in manner in which U.S. applicants were advised of
interviews).
Misak's General Building Contractors, 89-INA-39
(Oct. 25, 1989) (where position is professional, and
recruitment is not limited to local applicants, the
rejection is unlawful if the employer fails to offer to pay
interview costs or arrange phone interviews).
Warmtex Enterprises, 88-INA-403 (June 28,
1989); Warmtex Enterprises v. Martin, 953 F.2d 1133
(9th Cir. 1992) (per curiam) (the Ninth Circuit affirmed the
district court's summary judgment ruling against the
employer; 20 C.F.R. § 656.24(b)(2) allows the
Department of Labor to find the employer's recruitment
insufficient because the employer rejected five apparently
qualified applicants who would not or could not travel for a
personal interview at their own expense).
L.A. United Investment Co., 87-INA-738 (April
20, 1988) (employer told applicants that there were over 30
applicants, and thus it could not offer to pay interview
expenses).
If an employer attempts to contact an applicant after the CO
alleges that the applicant was not contacted or interviewed, or
was rejected, the fact that the employer shows that the applicant
is now unavailable does not cure the initial violation.
Bruce A. Fjeld, 88-INA-333 (May 26, 1989) (en
banc); Suniland Music Shoppes, 88-INA-93 (Mar. 20,
1989) (en banc); Custom Card, 88-INA-212 (Mar. 16,
1989) (en banc); Amritsar Academy, 88-INA-34 (Mar.
13, 1989) (en banc); O'Malley Glass & Millwork
Co., 88-INA-49 (Mar. 13, 1989) (en banc);
Done-Rite, Inc., 88-INA-341 (Mar. 2, 1989) (en
banc); Dove Homes, Inc., 87-INA-680 (May 25, 1988)
(en banc); Linen Star, Inc., 91-INA-316 (Oct. 2,
1991); Mike's Refrigeration, 90-INA-258 (July 30, 1991);
A & E Clinical Veterinary Laboratory, 90-INA-28 (Jan.
2, 1991); Whitman, Requart & Associates Engineers,
89-INA-328 (Aug. 15, 1990); J. Howard & Associates,
Inc., 90-INA-208 (May 3, 1990); Minnesota House of
Representatives Research Department, 89-INA-163 (Mar. 8,
1990); Shaw's Crab House, 89-INA-139 (Jan. 3, 1990);
Ridglea Country Club, 88-INA-180 (Jan. 3, 1990); Huron
Aviation, 88-INA-431 (July 27, 1989); Annette Gibson,
88-INA-396 (June 20, 1989); International Panstate Corp.,
88-INA-231 (June 8, 1989); Listrani's Restaurant,
88-INA-380 (June 8, 1989); Arcadia Enterprises, Inc.,
87-INA-692 (Feb. 29, 1988); Dresshappers Lingerie,
88-INA-6 (Feb. 23, 1988); ENY Textiles, Inc., 87-INA-641
(Jan. 22, 1988).
Even an unaccepted offer of the job to the previously
rejected applicant will not cure the violation. United
Business Institute, 89-INA-82 (Dec. 13, 1989).
Despite the general rule that an employer's showing that the
applicant is now unavailable does not cure the initial
violation, if the employer can adequately prove that the
applicant (who was not contacted or who was rejected) was not
available for the position at the time of initial
recruitment, this may excuse the violation. Bada
Apparel, 87-INA-712 (Apr. 13, 1988). CompareCustom
Card, 88-INA-212 (Mar. 16, 1989) (en banc) (applicant
found to have been available at the time of recruitment).
SeealsoHennessey's Tavern, Inc.,
90-INA-437 (Mar. 13, 1991) (30-day delay, not excused because the
employer alleged the applicant was not qualified, as the
applicant's letter raised the reasonable possibility that he was
qualified); Venk Jewelry, 89-INA-348 (July 30, 1990)
(indicating that a lack of qualification might excuse lack
of contact in certain circumstances; applicant, however, was
qualified).
In Yaron Development Co., Inc., 89-INA-178 (Apr. 19,
1991) (en banc), the Board noted that, assuming arguendo
that the employer's discovery after the FD that the applicant
would not have taken the job if offered because it was allegedly
"too far" away, the employer's argument came too late
for the CO to consider. The Board further held that, even if the
argument had been adequately raised before the CO, the employer
failed to establish that distance was the sole reason that the
applicant expressed disinterest when he was finally
contacted.
In Ironclad, Inc., 88-INA-477 (Feb. 12, 1990) (1-1-1
split decision), Judge Brenner indicated in a concurring decision
that if the employer can show that its delay in contacting
applicants played no part in the decision not to hire those
applicants, he would not find that the delay in contacting the
applicants was fatal to the application.
A CO may require an employer to contact or recontact
seemingly qualified U.S. applicants. See, e.g.,
Mr. and Mrs. Charles Shinn, 88-INA-16 (Feb. 16, 1989)
(en banc); City Public Service, 89-INA-337 (Mar.
27, 1991).
If the CO's NOF instructs the employer to contact or
recontact a U.S. applicant, and to state a lawful job-related
ground for rejecting the applicant, but does not instruct the
employer to state and document its reason for rejecting the
applicant during the recruitment period, then the CO may not deny
certification based on the employer's initial rejection. Mr.
and Mrs. Charles Shinn, 88-INA-16 (Feb. 16, 1989) (en
banc) (applicant's current unavailability was lawful
job-related reason given the scope of the CO's NOF).
The CO must provide the employer with adequate time to
provide documentation of a required recontact. For example, in
City Public Service, 89-INA-337 (Mar. 27, 1991), where the
employer had no control over when U.S. applicants would return
certified mail receipts, a panel found the employer's request for
an extension of time to submit signed certified mail receipts to
be reasonable and the CO's denial of the extension to be an abuse
of discretion. The CO had required, in the NOF, that the employer
recontact three applicants. The employer responded in rebuttal
with copies of the letters which were sent, and unsigned
certified mail receipts. The employer explained that it would
submit the signed receipts when the applicants returned them, but
the CO had inappropriately found that the employer had not proven
it had recontacted U.S. applicants.
Where a CO instructs an employer not to interview a U.S.
applicant, but merely to document that the applicant is not
qualified, willing or available at the time of initial
consideration and referral, it is improper to deny certification
because the applicant was not interviewed. Prospect
School, 88-INA-184 (Dec. 22, 1988) (en banc).
Section 656.20(b)(3) provides that it is contrary to the
best interests of U.S. workers to have the alien or agents or
attorneys for the alien participate in interviewing or
considering U.S. workers for the job offered. For a detailed
discussion, see Chapter 3, II (Alien Ownership and
Control).