Two BALCA cases address rejection of U.S. workers in the PERM process

News Release from Jewell & Associates, PC – September 20, 2012 Employers who wish to permanently hire foreign workers through a labor certification-based process must conduct a test of the labor market to ensure that there are not sufficient U.S. workers able, willing, qualified, and available to perform the work for which the alien would be hired. If the labor market test identifies no such U.S. workers, the employer may file a labor certification application (LC) on the foreign worker’s behalf. To ensure the integrity of the labor market test the Department of Labor’s certifying officer (CO) may review the resumes or job applications to ensure that the U.S. workers were rejected only for lawful, job-related reasons. Two recent BALCA decisions will encourage prudent employers not to immediately reject applicants who do not exactly meet the job requirements.

In Kennametal, Inc. 2010-PER-01512 (March 27, 2012) and Goldman Sachs & Co. 2011-PER-01064 (June 8, 2012) both employers were engaged in “supervised recruitment,” but the decisions provide valuable guidance for employers evaluating applications in the course of a “regular” LC process. Both employers filed LCs in which they stated that any suitable combination of education, training or experience would be acceptable for the role in question. Both employers determined that none of the applicants satisfied their minimum requirements. The CO disagreed and denied the applications, finding that U.S. workers had been rejected for other than lawful, job-related reasons.

In both cases BALCA agreed with the CO. It stated that a U.S. worker will be considered able and qualified for a job opportunity if by education, training, experience, or a combination thereof, they are able to perform the duties in a normally acceptable manner. Therefore if a worker’s resume lists such a broad range of experience that there is a reasonable possibility they may meet the job requirements, even if it does not expressly list all of the required qualifications, the burden is on the employer to investigate the applicant’s qualifications further. Therefore Kennametal should have further investigated the qualifications of three applicants who, though they lacked the required bachelor’s degree, had between ten and twenty-four years of experience; and Goldman Sachs’ rejection of one applicant without investigating how his admittedly “significant relevant experience [and] significant education” combined might meet the job requirements was also improper.

Kennametal raised an additional issue. BALCA reiterated the regulatory principle that if a U.S. worker lacks skills necessary to perform the job duties, but can acquire them during a reasonable period of on-the-job training, the employer may not use the applicant’s lack of skills as a lawful, job-related reason to reject him/her. Furthermore, “[a]n employer claiming that applicants will only be qualified if they already possess these skills must substantiate its claims by giving the specific period of time that training would take.” The employer’s rejection of seven applicants because they lacked one of the skills required to perform the role was therefore unlawful. (Interestingly, the CO’s own research into the training available for the skills seemed to play a key role in BALCA's analysis.

Clearly, employers must conduct an in-depth investigation of potentially-qualified applicants' qualifications. An expert opinion in the recruitment report, such as that provided by a professor of finance for Goldman Sachs, is not a substitute. Neither are summary statements, such as the expert’s declaration that an applicant lacking an experience requirement could not perform the job competently, and thus “could not reasonably be assumed to be potentially qualified.” BALCA’s admonition in Dearborn Public Schools 19-INA-222 (Dec. 7, 1993) (en banc) is instructive. “A resume is just that: a summary; an introductory overview highlighting an applicant's background of qualifications. It is not a temple to be worshiped as the fount of all knowledge about an applicant's qualifications.” Indeed, employers should not fear interviewing an applicant: As BALCA said in Goldman, further investigation could have shown that the potentially-qualified applicant’s experience "would not yield a suitable combination.” On the other hand, however, employers might wonder when an interview is not warranted. What if, in response to an advertisement listing the full job description, an applicant with two decades of experience responds with a resume that does not contain any of the skills requirements? May the employer infer that the applicant did not customize their resume to the ad because he or she could not satisfy those requirements? Or must the employer still investigate further? This issue was not raised in Kennametal or Goldman Sachs and so employers will have to continue exercising their judgment on a case-by-case basis, bearing these decisions in mind.

By Christopher Beckerson. © Jewell & Associates, PC 2012