BALCA casts doubt on FAQ regarding advertisements in professional journals

News Release from Jewell & Associates, PC – August 3, 2011 In the Matter of The University of Texas at Brownsville (2010-PER-00887), BALCA held that the Certifying Officer (“the CO”) abused his discretion when he denied the employer’s labor certification application on the basis that the national professional journal in which its advertisement was placed was only available electronically. While this may appear to end the Department of Labor’s requirement that such advertisements be in print, there are reasons to be cautious.

The employer used the special recruitment and documentation procedures for college and university teachers; the position recruited for was Assistant Professor in Health and Human Services. The CO denied certification on the ground that Inside Higher Ed (IHE), the national professional journal used during recruitment, was not appropriate because it is only available in electronic form.

The employer requested review of the matter by BALCA. In his statement of position the CO supported the denial by reference to an FAQ posted by the Office of Foreign Labor Certification, which stated that “an electronic national professional journal does not satisfy the optional special recruitment provisions’ advertising requirement. The employer must use a print publication.”

The Board noted that both regulations dealing with national professional journals are silent on the matter of whether the advertisements placed in them must be in print or electronic form. It also noted the OFLC’s FAQ on the subject. However, the Board stated that according to its previous decisions, a response to an FAQ cannot create a substantive rule adverse to an applicant without first undergoing notice and comment rulemaking; “[FAQs] are not a method by which an agency can impose substantive rules that have the force of law.” (Denzil Gunnels, 2010-PER-628, citing HealthAmerica, 2006-PER-1, en banc.)

The Board found that the FAQ response imposed a substantive requirement on employers that was not supported by the PERM regulations. Since the CO did not dispute that IHE was a national professional journal, and did not explain why an electronic version was inadequate, the denial was an abuse of discretion. The case was remanded for the CO to review the application’s merits.

What implications does Brownsville have for employers and practitioners? Notionally, this appears to be the end of DOL’s requirement that these advertisements be in print. However, there are two strong reasons to be cautious. First, this was a panel decision that could be overturned by the Board sitting en banc, should the CO request the decision be reviewed. Second, even if the decision stands, BALCA decisions are not binding on DOL. A little caution is therefore necessary until DOL reveals its intent towards the FAQ that created the print-only policy.

By Christopher Beckerson. © Jewell & Associates, PC 2011