USDOL/OALJ Law Library
Summaries of BALCA en banc Decisions, 1996 to Present
GOOD FAITH RECRUITMENT EFFORTS; STANDARD IS REASONABLE EFFORTS TO CONTACT U.S. APPLICANTS RATHER THAN PROOF OF ACTUAL CONTACT; CERTIFIED MAIL, RETURN RECEIPT REQUESTED CANNOT BE REQUIRED BY THE CO, BUT MAY BE BENEFICIAL FOR EMPLOYERS TO DOCUMENT THEIR REASONABLE EFFORTS In M.N. Auto Electric Corp., 2000-INA-165 (BALCA Aug. 8, 2001) (en banc), the Board held that in order to establish good faith recruitment, an employer does not need to establish actual contact of applicants, but only reasonable efforts to contact applicants. Accordingly, a Certifying Officer cannot require an employer to use certified mail, return receipt requested, to prove actual contact with U.S. applicants. Rather, an employer must be given an opportunity to prove that its overall recruitment efforts were in good faith, even if it cannot produce certified mail return receipts to document its contacts with U.S. applicants. Moreover, a CO may not summarily discard an employer's assertions about what efforts were made to contact applicants, although a bare assertion without supporting reasoning or evidence is generally insufficient to carry an employer's burden of proof.
The Board observed that it would be appropriate for the CO to have local job services, when providing recruitment instructions to employers, to strongly suggest use of certified mail, return receipt requested, and to remind employers that it is their burden to establish good faith efforts at recruitment. The Board also observed that without such documentation, an employer may have a difficult time responding to questions about date of mailing or an assertion by a U.S. applicant that he or she was never contacted. The Board also stated that instructions to the employer may include a statement describing the employer's obligation to try alternative means of contact if one type of contact does not work, which is hereinafter discussed.
BUSINESS NECESSITY; COOKING SPECIALIZATION REQUIREMENTS FOR DOMESTIC COOK POSITION
In Martin Kaplan, 2000-INA-23 (BALCA July 2, 2001) (en banc), the Board reviewed three applications involving domestic cooks with job requirements for experience in specific styles or types of cuisine (Kosher, Vegetarian, Polish). The Board held that cooking specialization requirements for domestic cooks are unduly restrictive within the meaning of the regulation at 20 C.F.R. § 656.21(b)(2), and therefore must be justified by business necessity pursuant to the test found in Information Industries, 1988-INA-82 (Feb. 9, 1989) (en banc). The Board also held that cooking specialization requirements for domestic cooks normally should be analyzed under the business necessity standard of 20 C.F.R. § 656.21(b)(2) prior to their consideration as a factor under the bona fide job opportunity analysis of 20 C.F.R. § 656.20(c)(8). See Carlos Uy III , 1997-INA-304 (Mar. 3, 1999)(en banc).
BUSINESS NECESSITY; FOREIGN LANGUAGE REQUIREMENT; JUSTIFICATION BASED ON
POOR ENGLISH-LANGUAGE PROFICIENCY OF WORKFORCE
On August 22, 2000, the Board issued Lucky Horse Fashion, Inc.,
1997-INA-182 (BALCA Aug. 22, 2000) (en banc), which addresses
the application of the business necessity test where the employer's
justification for a foreign language requirement is based on the poor
English-language communication skills of its workforce.
The Board held that such evidence, standing alone, does not establish
that a foreign language requirement bears a reasonable relationship to
the occupation within the context of Employer's business.
Thus, an employer relying on such evidence alone has not satisfied
the first prong of the Information Industries business necessity
test.
SCA WAGE DETERMINATION; RECONSIDERATION
On July 28, 2000, the Board issued an Order reconsidering its
decision in El Rio Grande, 1998-INA-133 (Feb. 4, 2000) (en banc).
The Certifying Officer had requested reconsideration on the issue of the Board's authority
to review prevailing wage determinations where the SCA wage is required, while amicus
and Employer requested reconsideration on whether "slotting" may be used in
determining SCA prevailing wages in labor certification cases. Although the
Board granted reconsideration, it affirmed its earlier en banc decision.
El Rio Grande, 1998-INA-133 (July 28, 2000) (recon. en banc)
CHALLENGE TO JOB TITLE; AUTHORITY OF CO TO INVESTIGATE OUTSIDE RECORD PROVIDED BY EMPLOYER
On February 15, 2000, the Board issued Chams, Inc., d/b/a Dunkin' Donuts, 1997-INA-40, 232 and 541
(Feb. 15, 2000)(en banc), which addresses the proper way in which a CO may challenge the
job title and the burden which an employer bears to establish that the job is as described by
its preferred classification. The decision also addresses the CO's use of outside communications
and documents in making a determination on the application.
For a summary of this decision, see the BALCA Headnote.
SCA WAGE DETERMINATIONS On February 4, 2000, the Board issued El Rio Grande, 1998-INA-133 (Feb. 4, 2000) (en banc), which addresses Board jurisdiction over wage determinations made in the context
of permanent alien labor certification applications,
standard of review, burden of proof, classifications under the SCA,
and use of slotting.
For a summary of this decision, see the BALCA Headnote.
CHALLENGE TO JOB TITLE; AUTHORITY OF CO TO INVESTIGATE OUTSIDE RECORD PROVIDED BY EMPLOYER Chams, Inc., d/b/a Dunkin' Donuts
, 1997-INA-40, 232 and 541 (Feb. 15, 2000) (en banc)
ALTERNATIVE JOB REQUIREMENTS Francis Kellogg
, 94-INA-465 and 544, 95-INA 68 (BALCA Feb. 2, 1998)(en banc)
Excerpts from the decision (citations and footnote ommitted):
Thus, we hold that any job requirements, including alternative requirements, listed by an
employer on the ETA Form 750A must be read together as the employer's stated minimum
requirements which, unless adequately documented as arising from business necessity, shall be
those normally required for the job in the United States, shall be those defined for the job in the
D.O.T.8, and shall not include
requirements for a language other than English (20 C.F.R. § 656.21(b)(2)). Therefore, we
also hold that the "permissive alternative" job requirement analysis applied in
Best Luggage is not in compliance with the regulations, and is overruled.
* * * *
Therefore, we hold that where the alien does not meet the primary
job requirements, but only potentially qualifies for the job because the employer has chosen to
list alternative job requirements, the employer's alternative requirements are unlawfully tailored
to the alien's qualifications, in violation of § 656.21(b)(5), unless the employer has
indicated that applicants with any suitable combination of education, training or experience are
acceptable.
BUSINESS NECESSITY REBUTTAL; UNEQUIVOCAL OFFER TO READVERTISE IF REBUTTAL NOT ACCEPTED Ronald J. O'Mara
, 96-INA-113 (BALCA Dec. 11, 1997)(en banc)
A. Smile, 89-INA-1 (Mar. 6, 1990), is good law, but:
" The holding in A. Smile is a limited one which
rests on underpinnings of fairness and due process. It affords an employer the opportunity to
attempt to establish the business necessity for a job requirement and, if unsuccessful, readvertise
the position if the employer has unequivocally agreed to readvertise in accordance with the
requirements set forth by the CO in the NOF. A. Smile does not apply where: 1. The
offer to readvertise is equivocal. 2. The NOF finds that no permanent or full-time job exists. 3.
The NOF finds that the employer rejected U.S. applicants who met the restrictive requirements.
4. The NOF finds a lack of good faith recruitment, including: a. An unreasonable delay in
contacting U.S. applicants. b. Failure to account for all resumes forwarded by the state
employment service. c. Job requirements designed to discourage U.S. applicants. d. Unstated job
requirements. e. Failure to comply with the posting of notice requirements or failure to advertise
in an appropriate newspaper or technical journal as directed by the CO."
Slip op. at 3-4.
See also Plant Adoption Center, 94-INA-374 (BALCA Dec. 12,
1997)(A. Smile did not apply because employer sought to add a restrictive requirement
after finding U.S. applicants who were qualified)
"the labor certification regulations do not provide an exception, either express or implied,
for a Federal wage schedule..."
NOF MUST PUT EMPLOYER ON NOTICE OF REASON FOR PROPOSAL TO DENY CERTIFICATION, BUT IS NOT REQUIRED TO
BE A DETAILED GUIDE ON HOW TO ACHIEVE LABOR CERTIFICATION Miaofu Cao
, 94-INA-53 (BALCA Mar. 14, 1996)(en banc)
Excerpt from the decision (citations ommitted):
Twenty C.F.R. § 656.25 requires that the CO issue a
Notice of Findings if certification is not granted. The Notice
of Findings must give notice which is adequate to provide the
employer an opportunity to rebut or cure the alleged defects. .
. . Although the NOF must put the employer on notice of why the
CO is proposing to deny certification, it is not intended to be a
decision and order that makes extensive legal findings and
discusses all evidence submitted to the file. The CO is not
required to provide a detailed guide to the employer on how to
achieve labor certification. The burden is placed on the
employer by the statute and regulations to produce enough
evidence to support its application. Case law has established
that to provide adequate notice, the CO need only identify the
section or subsection allegedly violated and the nature of the
violation,... inform the employer of the evidence supporting the
challenge, ... and provide instructions for rebutting and curing
the violation,....
Once the CO provides specific guides, he/she must be careful
not to mislead the employer into believing that the specific
evidence requested is all that is needed to rebut the NOF and for
the application for labor certification to be granted. Often it
is necessary for the CO to request specific information that
he/she has a particular interest in obtaining in light of the
deficiencies of the application. However, when the CO requires
more than the specific information requested to find that the
deficiency has been remedied, he/she must clearly state this fact
in the Notice of Findings to avoid any ambiguity.
Chams, Inc., d/b/a Dunkin' Donuts
