BALCA reverses labor certification denial: Omission of optional benefit from recruitment advertisements not fatal

News Release from Jewell & Associates, PC – October 19, 2011

Employers placing advertisements for their labor certification applications must draft them carefully to ensure they comply with the PERM regulations. 20 CFR 656.17(f)(7) states that ads may not contain terms and conditions of employment that are “less favorable than those offered to the alien.” However, the Department of Labor has also said that employers have the option of placing “broadly written advertisements with few details regarding job duties and requirements” (PERM FAQs, March 3, 2005). Between these statements is a puzzle for employers: Which terms and conditions may be omitted if the ads are to remain compliant?

In Emma Willard School 2010-PER-01101 the Board of Alien Labor Certification Appeals handed down a decision whose result seems helpful for employers, but which ultimately fails to illuminate the little guidance available. The Certifying Officer had denied the employer's application because of its failure to list the availability of subsidized housing in its recruitment. The Board, reversing the CO, pointed out that the regulations do not require ads to list the wage rate or other benefits, and that just because ads do not list that information does not mean that they contain terms or conditions less favorable than those offered to the alien. A reader, the Board said, “would not assume that the Employer is offering no wage at all simply because one isn’t listed, nor would he assume there are no other benefits, terms, or conditions. ... There is no obligation for an employer to list every term or condition of employment and listing none does not create an automatic assumption that none exist.”

Employers may find this encouraging, but the decision actually contains little of use for those drafting their next round of recruitment advertisements. It is true that the regulations do not require ads to contain all of the terms and conditions of employment, so commonplace benefits such as healthcare and vacation days may be safely omitted. Indeed, as with the housing benefit in Emma Willard, their inclusion would make nonsense of the option of placing “broadly written” ads. On the other hand, the regulations do prohibit terms and conditions less favorable than those offered to the alien; hence the Board’s disclaimer that its opinion “should not be construed as support for an employer never having to offer or disclose a housing benefit.” So the question remains: Which terms and conditions can be omitted from, and which must be listed in, recruitment material? Without further direction, cautious employers should continue to list unusual or otherwise significant benefits.

By Christopher Beckerson. © Jewell & Associates, PC 2011