January 15, 2014
Before permanently employing a foreign worker, employers must certify that there are no U.S. workers available for the position by performing specified recruitment steps in order to receive a labor certification. The employer bears the burden of proving that it conducted the mandatory recruitment steps as a good faith effort to confirm that there are no US workers available before hiring a foreign worker. There are three mandatory recruitment steps that every employer must follow. First, the employer must post the job with a state workforce office for 30 days. Second, the employer must post an internal notice of the employer’s intent to hire a foreign worker. Third, the employer must post the job announcement in a Sunday newspaper that is in general circulation in the area of proposed employment for two weeks. If the position that the employer seeks to fill is “professional,” then the employer must choose an additional three of the ten recruitment steps listed in 20 C.F.R. § 656.17(e)(1)(ii)(A)-(J). One of the options is to post the position announcement on the employer’s website. Another option is to post the job opportunity through a job search website other than the employer’s website. As evidence of these options, the employer usually must provide dated printouts of the webpages showing the job advertisement, but other evidence, such as affidavits, may be acceptable. It is the employer’s duty to prove that all of the regulatory labor certification requirements have been satisfied before the labor certification may be granted.
In a decision of Board of Alien Labor Certification Appeals case, issued on December 30, 2013, the Administrative Law Judge (“ALJ”) affirmed a denial of a labor certification because the employer in that case failed to meet the regulatory recruitment requirements. (In the Matter of The Dallas Morning News, L.P., BALCA Case No.: 2011-PER-02302, December 30, 2013)
In that case, the Certifying Officer (“CO”) denied the labor certification in the grounds that the employer did not satisfy the three additional recruitment steps required for a professional position. Two of the three recruitment steps that the employer elected to perform were to post the job opening on the employer’s website and to post the job announcement on an external job search website. The employer posted the job opening to Yahoo’s HotJobs, which is an online career management website containing job listings. In addition, at the bottom of the homepage of the employer’s website, a “careers” hyperlink redirected job seekers to the employer’s profile and job listings on Yahoo’s HotJobs’ website. The CO denied the labor certification based on a finding that the employer did not adequately document that it posted the job opening to its website.
Upon filing a request for reconsideration, the employer submitted an affidavit attesting that the employer entered into a contract with HotJobs whereby the career section of the employer’s website was linked to HotJobs’s website. Therefore, if a potential job seeker clicked on the “careers” tab on the employer’s website, it would redirect that job seeker out of the employer’s website and to the employer’s profile and job openings listed on HotJobs.
Upon reconsideration, the CO determined that although it may have been the employer’s common practice to post a hyperlink to HotJob’s website, it was not sufficient evidence to show that the job posting was actually posted to the company website. The CO found that there was no “logical nexus” between the company’s website and HotJobs.
The BALCA Decision
The case was then forwarded to BALCA, where the ALJ affirmed the CO’s decision. The ALJ found that the employer provided sufficient evidence to prove that it posted the job announcement on an external job search website, namely HotJobs, thereby satisfying the recruiting requirement found at 20 C.F.R. § 656.17(e)(1)(ii)(C). The ALJ further found that the employer proffered sufficient documentation to show that at the bottom of its website, the “careers” tab directed job seekers to the employer’s profile on HotJobs. However, the ALJ determined that a “careers” tab on the employer’s homepage that redirects a job seeker to the employer’s profile on an external job search website was not sufficient to satisfy the additional professional recruitment step listed at 20 C.F.R. § 656.17(e)(1)(ii)(B), which the employer had elected to use. The ALJ stated that this requirement contemplates that the employer’s website will actually include a webpage that advertises the job, not simply redirect job seekers the job posting on an external page.
In finding that the employer failed to satisfy the three additional recruitment requirements, the ALJ stated that posting the link to HotJobs was redundant, as it was the same act as posting the job announcement on HotJob’s webpage. Thus, according to the ALJ, the employer did not choose three of the ten options for additional recruitment, but instead chose only one option and used it twice.
This decision reminds us that employers must ensure that they are properly and adequately following the recruitment requirements for labor certifications. While it may be a common practice for an employer to link the company’s “careers” section to an external website, this will not satisfy the recruitment requirement that the company post the job opening on the employer’s website.