Additional Advertising Steps Must Be Separate Entities
From: USADNEWS Volume VIII, Issue 1 January 2014
Employers filing labor certification applications for professional positions are required to conduct three recruitment steps in addition to the mandatory Sunday newspaper advertisements and the State Workforce Agency job order. These three additional methods must be distinct from each other in order to qualify as a separate advertising method.
In the Matter of The Dallas Morning News, L.P., the Certifying Officer denied the employer’s application because they duplicated one of the additional methods. The Dallas Morning News, L.P. was advertising for the position of Assistant Sports Editor for their Spanish language newspaper Al Dia. As one of the additional recruitment steps, the paper attested that they advertised on their company website, www.dallasnews.com. However, the printouts they provided showed that the position had been placed only on http://hotjobs.yahoo.com, which the employer also used to satisfy the requirement to post on a job search website.
The employer argued that because their company has a contract with HotJobs.com, the “Careers” link on the employer’s website automatically directs to the HotJobs site. The case was forwarded to the Board of Alien Labor Certification Appeals (BALCA) for discussion. The Board considered the employer’s claim that the “Careers” link on their homepage fulfilled the additional recruitment step of posting the job on the employer’s website and concluded that it did not. A link to an outside careers site did not qualify as posting the position itself. BALCA advised that if the Dallas Morning News, L.P. was in fact contractually obligated to only use the HotJobs site for posting positions, then it should have selected another advertising method from the approved options to satisfy the third step.
Furthermore, BALCA made an interesting assessment of the labor certification process in examining this case. The employer had presented multiple documents and affidavits attempting to explain the context for why the HotJobs web prints were used to document two separate methods. The Board stated that because of the nature of the application process and in order to “better serve the public interest overall, given the resources available,” the PERM program was “purposefully designed to sacrifice in-depth individual adjudication of applications for a theoretically faster and more efficient attestation process that demands strict adherence to the PERM regulations.” Therefore they ruled that the employer bears the burden of proving compliance by providing the proofs specified in the regulations.
USADWEB understands the exacting nature of the regulations and will advise clients of any potential overlap in recruitment methods. Your advertising representative will also provide you with the necessary proofs to adequately document your advertisements.