Advertisements for Multiple Positions Must Clearly Identify Job Requirements

From USADNEWS Volume XII, Issue 7

USADWEB  receives newspaper advertisement texts of varying length and degrees of detail. The regulation at 20 C.F.R. § 656.17(f)(3) states that newspaper advertisements must “[p]rovide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought.” In the Final Rule, the Employment and Training Administration (ETA) noted that the regulations offer employers “flexibility to draft appropriate advertisements that comply” and that do not “require employers to run advertisements enumerating every job duty, job requirement, and condition of employment[…].” The ETA continued, “As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer’s application, the employer will meet the requirement of apprising applicants of the job opportunity.”

The regulations also do not preclude an employer from advertising for multiple positions in a single text so long as the requirements and duties clearly correspond to the appropriate job title. However, the regulation at 20 C.F.R. § 656.17(f)(6) states that an advertisement cannot contain “any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089.” Therefore it is critical that an advertisement containing multiple positions clearly identify which requirements are associated with which job title. Two cases before the Board of Alien Labor Certification Appeals (BALCA) reiterate the importance of establishing this nexus between the requirements and the specific position for which certification is sought.

In the Matter of Capgemini America, Inc. (December 2017) BALCA upheld the denial of an employer’s labor certification application because the requirements listed in the advertisement did not clearly relate to the position. The employer sought a labor certification for the position of “Computer Systems Analysts.” The employer had advertised for multiple IT openings, one of which was a “Systems Analyst.” The newspaper advertisement stated, “Positions require bachelors [sic] degree or equivalent and […]” and went on to enumerate several requirements which were not all listed on ETA Form 9089. The Board determined that because of the use of the conjunctive “and,” the employer did not specify which requirements pertained to the position in the application. “By including the conjunctive,” the Board explained, “U.S. workers would reasonably assume the job requirements applied to each job opening.” Therefore the advertisement was not specific enough to apprise job seekers of the particular job opportunity.

In deciding that case, BALCA referred to a previous decision in Microsoft Corporation (November 2012), in which the employer used a newspaper advertisement containing multiple positions to support its application for labor certification for a “Program Manager.” The advertisement included several requirements that were not listed on ETA Form 9089 and the advertisement did not specify which requirements applied to which positions. The Board concluded that “when an employer advertises for multiple positions that have varying job requirements, the employer must carefully draft its advertisements to let U.S. workers know which requirements apply to all positions and which requirements only apply to some of the positions.”

The decision in Capgemini America makes clear that this standard does not apply to additional recruitment such as job search websites or campus placements. As BALCA ruled in Symantec Corp (July 2014), the regulations at 20 C.F.R. § 656.17(f) apply only to those advertisements “placed in newspapers of general circulation or in professional journals.”