BALCA Case Raises Questions on the Use of Appropriate Local Papers

From: USADNEWS Volume VII, Issue 3 April/May 2013

In recent months, the Department of Labor (DOL) has more frequently scrutinized the use of local papers as an additional recruitment method. In the Matter of Symrise Inc. (May 2012), a recent case decided by the Board of Alien Labor certification Appeals (BALCA), the Certifying Officer (CO) denied the employer’s application because they used the same newspaper for both their Sunday advertisements and for an additional local or ethnic paper.

The employer ran two Sunday advertisements in the Bergen Record as well as one weekday ad. The CO asserted that the use of the same paper to fulfill two recruitment methods amounted to a duplication of steps and therefore did not satisfy the regulations at 20 C.F.R. § 656.17(e)(ii) that the employer must select “three additional recruitment steps.”  The employer argued that the DOL recognizes the dual use of publications by permitting the use of online advertisements run on a newspaper’s website to satisfy the job search website requirement even though the online ads are associated with the same newspaper being used for the Sunday ads.

The CO contended that the dual use of a newspaper and newspaper’s website was an exception and that the primary concern is that each of the additional recruitment steps should target slightly different application populations. The employer submitted documentation showing that the weekday circulation of the Record was substantially greater than the other local newspapers in the area, but the CO responded that the circulation figures were not a factor in determining an appropriate local paper. An employer could not use an additional ad in the newspaper of general circulation to substitute for an ad in a local or ethnic newspaper.

In reviewing the case, BALCA took a different approach. BALCA posed the question of whether the same newspaper that met the criteria for a general circulation newspaper could also qualify as a local newspaper. If so, the additional advertisement would not be a duplication of a step.

The CO cited the FAQ response that “the purpose of requiring the employer to use three additional recruitment steps is to ensure the greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity.” BALCA noted that an FAQ response is not a regulation and therefore cannot impose the same requirements. Furthermore, BALCA concluded that the FAQ in question still did not address the question of whether one newspaper can ever be considered both a general and a local paper.

BALCA also noted that neither the preamble to the Proposed Rule nor to the Final Rule offer any guidelines on the choice of a local or ethnic paper except to state that it must be “appropriate for the job opportunity.”  In fact, BALCA stated, “the regulations are wholly devoid of any factors used in determining whether a newspaper is a ‘local’ newspaper.” In light of the lack of guidance on this issue, BALCA vacated the denial and remanded the case to the CO to determine whether the Record met the criteria of both a local newspaper and a newspaper of general circulation.

The case raises more questions than it answers. What factors do determine the appropriateness of a local or ethnic newspaper? Can the same newspaper satisfy the criteria as both a local paper and the paper of general circulation?  In cases where a parent company publishes both the major newspaper and a community issue, what are the guidelines for treating them as separate publications?

The CO requested an en banc panel review, but the employer withdrew its original application before the panel had a chance to rule. The panel therefore dismissed the en banc proceedings and vacated the Symrise decision.

USADWEB maintains a conservative approach, unless directed otherwise by our clients. In the case of community newspapers that are published by the newspaper of general circulation, we look to ensure that the circulation of the two papers is not identical, as discussed in a previous NewsBlast article (Parent Publishers: When Sunday Papers and Community Papers Have the Same Publisher). USADWEB will stay aware of new decisions that are made to flesh out answers to these questions.