BALCA Case Determines Wall Street Journal Not Appropriate as Professional Journal
From: USADNEWS Volume V, Issue 3
Selecting an appropriate publication to satisfy the Department of Labor (DOL) advertising regulations can be a complicated matter. One of the primary requirements is that the employer must place two Sunday advertisements in the newspaper of general circulation in the area of intended employment [20 C.F.R. 656.17(e)(1)(i)(B)(1)]. An exception is made under 20 C.F.R. 656.17(e)(1)(i)(B)(4), which allows for a professional journal to be used in lieu of one of the Sunday ads if the position requires experience and an advanced degree, and if a journal would normally be used to advertise the position. Questions of what qualifies as a professional journal sometimes arise.
In the Matter of HSBC Bank U.S.A., N.A., the employer advertised the position in the Wall Street Journal in place of one of the Sunday newspaper advertisements. The employer claimed that the Wall Street Journal is “a leading business journal that is respected and read on a regular basis by professionals in a specific field,” and as such that it meets the professional journal exception. The Certifying Officer (CO) denied the application, rejecting the employer’s use of the Wall Street Journal as a professional journal.
The employer appealed the case with the Board of Alien Labor Certification Appeals (BALCA). The employer provided an affidavit from Professor Emeritus Richard W. Sapp of Portland State University to support their argument that the Journal does in fact serve as a professional publication. However, BALCA determined that the Wall Street Journal is, by its own definition, a newspaper. In spite of its reputation as a widely read business publication, its wide-ranging coverage of social and current events confirms its status as a newspaper and not a professional journal. The Board also refused to consider the affidavit of Professor Sapp because their review is limited to evidence that is already in the record upon which the CO’s denial was based, according to 20 C.F.R. 656.26(a)(4)(i). The affidavit was submitted after the denial and therefore could not be factored into the review of the CO’s decision. Accordingly, BALCA upheld the denial of the labor certification application.