BALCA overturns denial of labor certification for omission of employer’s name from “private employment firm” recruitment step

News Release from Jewell & Associates, PC – April 10, 2012 As we have noted in previous posts, employers wishing to file labor certifications on behalf of their employees must follow strict recruiting guidelines set by the Department of Labor. This includes the performance of three of ten optional recruitment steps. One of these optional recruitment steps is the use of a private employment firm or placement agency, which can be documented by material “sufficient to demonstrate that recruitment has been conducted.” See 20 C.F.R. § 656.17(e)(1)(ii)(F). The regulation gives two examples of such material: Copies of contracts between the employer and the firm, and copies of advertisements placed.

In World Agape Mission Church 2010-PER-01117 (March 23, 2012) the Certifying Officer (CO) had denied a labor certification application in part because the posting placed by the private employment firm failed to name the employer. BALCA overturned the denial. It noted that the requirements in 20 C.F.R. § 656.17(f), which included naming the employer, explicitly related only to newspapers or professional journals, and that the regulation regarding private employment firms did not contain this requirement. Although previous BALCA panels had held that other advertisements placed by an employer must comply with 20 C.F.R. § 656.17(f), this panel distinguished between those recruitment steps and the use of a private employment firm: It was not the normal practice of private employment firms to list an employer’s name. If they did that, potential employees could bypass them entirely.

Even so, BALCA noted, advertisements placed by private employment firms must comply with the employer’s duty to recruit in good faith and make the job opportunity clearly open to U.S. workers. The advertisement in this case contained the job title, the duties, the experience and education required, and a reference number that allowed the CO to match the listing to the employer’s labor market test. The employer had therefore demonstrated its use of a private employment firm, and had shown that the position was clearly open to U.S. workers, notwithstanding the omission of the employer’s name from the “private recruiting firm” recruitment step.

By Christopher Beckerson. © Jewell & Associates, PC 2012