BALCA Tackles Issue of Local Newspapers Again

From: USADNEWS Volume VIII, Issue 5 July 2014

The regulations at section 20 C.F.R. § 656.17(e)(1)(ii) require an employer to advertise a professional position using three alternative recruitment methods, in addition to the mandatory placement of two Sunday advertisements in a newspaper of general circulation and the job order placed with the State Workforce Agency (SWA).  There are ten options that may be used to satisfy one of the three additional methods, one of which is the placement of an ad in a local or ethnic newspaper [20 C.F.R. 656.17(e)(1)(ii)(I)]. The regulations do not give much further guidance on this step, and recently it has become the focus of greater scrutiny.

In the Matter of Delta Search Labs, Inc., the Certifying Officer (CO) denied the employer’s application for labor certification on the grounds that the advertisement in the local newspaper did not satisfy the regulations.  The employer had advertised in a weekday edition of the Boston Globe, the same paper it used as the paper of general circulation for its Sunday advertisements.  The CO argued that the use of the same publication for the local paper constituted a duplication of efforts and did not qualify as a separate recruitment step.

The employer contested the denial, arguing that the regulations do not stipulate that the local and general newspapers must be different publications.  In a good faith effort to advertise in the paper most appropriate to bring responses from qualified workers, the employer had selected the Boston Globe as the best choice for a local paper. The fact that it also qualifies as the paper of general circulation does not preclude it from being used also as a local edition, considering that its local circulation figures are greater than any of the competing newspapers in the area.  Furthermore, the circulation figures of the Sunday edition of the Globe are different from its daily circulation, indicating that the employer did succeed in reaching two different populations.

The case was forwarded to the Board of Alien Labor Certification Appeals (BALCA), which examined the FAQs that the Department of Labor (DOL) posted on the Office of Foreign Labor Certification’s website. The FAQs state that each advertisement step must be separate and distinct, and cannot be a duplication of a previously used method. “Why must the advertisement medium be different in order for advertisements to be counted as additional steps?” the FAQs ask. It is because the purpose of requiring the use of three additional methods “is to ensure that the greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity.”

The FAQs specifically state, as an example of duplication, that a third advertisement in the same newspaper of general circulation cannot be used to qualify as a local or ethnic publication.  BALCA considered, however, that this does not address the issue of “whether one publication could, based on its daily and weekend circulation figures, serve as both a local and general circulation publication.” The CO himself did not argue that the Boston Globe did not qualify as both a general and a local paper. Therefore BALCA upheld the employer’s argument that as long as a publication qualifies as both, the regulations do not prohibit the use of the same newspaper as both a newspaper of general circulation and a local or ethnic newspaper.  Nothing in the preamble to either the Proposed Rule or the Final Rule prevents this.  In fact, local and ethnic papers were not even included in the Proposed Rule as one of the alternative recruitment options. This method was later added to the Final Rule with no further instructions other than the caveat that the paper must be “appropriate for the job opportunity.”

The Board hedged their decision in this case.  They reversed the denial of the labor certification based on the employer’s contention that the use of the same newspaper as both a local and a general paper is not necessarily a duplication of efforts.  However they declined making a determination as to whether the Boston Globe actually does qualify as both a local and general circulation newspaper.  Because the CO declined to argue this point, BALCA felt it went beyond the scope of the appeal for them to address it. Therefore, the decision states merely that the CO could not deny the employer’s application without first determining whether or not the Boston Globe qualified as a local paper.

The overall issue remains unresolved.  BALCA established that a single publication may qualify as both a local and general circulation paper, but what criteria determines whether it does or not?  This is similar to BALCA’s decision in the Matter of Symrise Inc. (May 2012), in which the CO denied the employer’s application because the employer had advertised in the Bergen Record as both the paper of general circulation and the local newspaper.  Similar arguments were made, but the CO did not comment on whether the Bergen Record qualifies as both paper types.  The Board overturned the denial, but declined to offer any further guidance on the issue. This leaves the question open ended, and future cases will determine whether the DOL challenges the use of the same paper for Sunday and local advertisements on the basis of whether the paper actually meets the criteria for both.

In keeping with a conservative approach, USADWEB will always select a different publication to satisfy the Sunday and local advertising requirements, unless directed otherwise.