Three Recent BALCA Decisions Provide Subtle, Yet Important Pro-Employer Holdings For PERM Filings
Three recent BALCA decisions give employers some flexibility when preparing and filing PERM Labor Certification applications. Specifically, the decisions address: (1) employer website recruitment efforts; (2) using alternate wage surveys at the prevailing wage stage; and (3) Sunday newspaper circulation and the definition of “area of intended employment.” Below are the three cases:
Matter of DGN Technologies
The Employer in this case used its company website as one of its recruitment steps for the PERM process. Upon an audit of the PERM application, the Certifying Officer denied certification based on the ground that website advertisement did not include dates of posting, except a handwritten notation that stated “continuous posting since June 1, 2008.” The Employer requested reconsideration and/or review, and stated that it did not remove the posting, and thus the handwritten notation was valid. The Certifying Officer reconsidered, but denied the request because of the handwritten notation. The Employer appealed the case to BALCA.
In its decision, BALCA referred to the Employment and Training Administration, Office of Foreign Labor Certification’s FAQ and restated that, for advertisements on an Employer’s website, an Employer may use alternate means of confirming posted dates, such as an affidavit, if dated copies of pages are not available. BALCA found that “dated copies” does not need to mean electronically dated, and that the Employer’s handwritten date was sufficient.
Matter of Bilinguals Inc.
The Employer, Bilinguals, Inc., filed a Prevailing Wage Request using an employer-provided wage survey, the Compdata Custom Compensation Survey. The Compdata Custom Compensation Survey provided only a median wage (calculating the median wage of all workers surveyed) and not an arithmetic mean wage (calculating the average wage of surveyed employees). The National Prevailing Wage Center (NPWC) issued a Request for Information requesting specific wage data, and Compdata stated that it could not publish the arithmetic mean wage without violating rules established by the Department of Justice. The NPWC rejected the alternate wage survey and issued a prevailing wage determination, stating that the Compdata Survey was not acceptable as it did not include an arithmetic mean.
The Employer submitted a redetermination request, which was denied, and the Employer subsequently submitted a request for Center Director Review, arguing that the Compdata Survey was compliant, but the prevailing wage determination was affirmed. The Employer then appealed to BALCA. BALCA found that the regulations are very clear in that, if a survey does not provide an arithmetic mean, the median wage can be used.
Matter of Hoffman Enclosures Inc.,
In this case, the Employer advertised in the San Antonio Express as its Sunday newspaper advertisement for a position located in Pharr, Texas. The Certifying Officer denied certification of ETA Form 9089, stating that the newspaper is circulated only in San Antonio and not in the “area of intended employment” in Pharr, Texas. Upon requesting review or reconsideration of the decision, the Employer submitted an affidavit stating that the newspaper is indeed the newspaper of general circulation as it reaches an audience throughout South Texas, including Pharr, and would thus reach the most U.S. workers. The Certifying Officer found that the denial stood, because Pharr was at least four hours away from San Antonio. On appeal, BALCA found that the Certifying Officer improperly interpreted the term “area of intended employment,” and that the distance between cities should not be an indicating factor of whether the newspaper had a far enough reach. The fact that the San Antonio Express is published in San Antonio should not be of consequence since it is circulated in Pharr. This decision confirms that an Employer need not use the newspaper that has the highest circulation, but just that it needs to use a newspaper that reaches the area of intended employment.