BALCA overturns labor certification denial, the sole basis of which was omission of job order from audit response

News Release from Jewell & Associates, PC – March 19, 2012 Employers wishing to file labor certifications on behalf of their employees must follow strict recruiting guidelines set by the Department of Labor (DOL). One of the required recruitment steps is posting an online job order with the appropriate State Workforce Agency (SWA) for a period of 30 days. The regulation regarding how to record posting of the job order says “[t]he start and end dates of the job order entered on [Form ETA-9089] serve as documentation of this step.” See 20 C.F.R. § 656.17(e)(2)(i).

Prudent employers keep a copy of the job order on file, notwithstanding the plain text of the regulation, because the Certifying Officer (CO) regularly requests a copy during audits. In A Cut Above Ceramic Tile 2010-PER-00224 (Mar. 8, 2012) the employer provided something less than a copy of the job order itself, and the CO denied certification on the basis that the material did not prove that the job order ran, or what it contained. BALCA overturned the denial en banc, but Ceramic Tile will encourage prudent employers to continue their practice of keeping copies of all recruitment activity on file – even where doing so goes well beyond the employer’s legal obligations.

Ceramic Tile was set for en banc review to address a conflict between two prior panel decisions. One was Mandy Donuts 2009-PER-481 (Jan. 7, 2011). In Mandy Donuts the employer’s application was denied on similar facts to Ceramic Tile. The denial was overturned on the basis that the regulations require only that the start and end dates of the job order be entered on Form ETA-9089. The Board in Ceramic Tile agreed with this result for three reasons. First, since the regulations actually require copies of some recruitment steps (i.e. newspaper advertisements), it was difficult to imply such a requirement where one was not present. Second, and relatedly, the H-2B temporary nonagricultural labor certification program regulations did require a printout of the job order, suggesting that the CO had conflated the two sets of regulations. Finally, regulatory history supported a plain reading of §656.17(e)(2)(i).

The Board went on to hold that when a regulation does not require retention of a particular type of evidence to document compliance with a recruitment step, the CO may not deny certification based on a failure to produce it. The CO’s denial on this basis only in this instance was therefore improper, and the Board asked DOL to “revise the PERM regulations” if it wants to compel an employer to retain such documentation. However, the Board endorsed the CO’s authority to request documentation of the job order, and asked employers to submit it where available – noting that most employers acting in good faith would have retained such documentation in any event. The issue of good faith in carrying out this recruitment step has therefore been left open for future cases.

By Christopher Beckerson. © Jewell & Associates, PC 2012