Affidavit May Suffice as “Reasonably Equivalent” Proof of Web Postings

From: USADNEWS Volume XI, Issue 5 June 2017

The labor certification process is an attestation-based program, according to the regulations at 20 C.F.R. § 656.10 (c), and the employer bears the burden of proof for establishing that it has met all of the requirements in the regulations. USADWEB understands the importance of providing documentation for any recruitment steps placed in connection with a labor certification application. This includes obtaining first and last day dated prints for any online advertisements.

The Matter of CB&I, Inc. (December 2016) debated whether an affidavit can be used to document the placement of an ad on the employer’s website in lieu of dated prints. In response to an audit, the employer provided a written statement from the company’s human resources manager that affirmed an advertisement for a “Senior Process Engineer” ran on the employer’s website from September 5, 2012 to November 2, 2012. Instead of printouts from the employer’s website, the employer included a copy of a CareerBuilder posting, which contained the following application instructions: “TO APPLY: www.cbi.com/careers/job-search-and-registration/ indicating job code 1892.79.”

The Certifying Officer (CO) denied the application because the employer did not furnish copies of the actual ad that appeared on the company’s website. The employer submitted an affidavit from William Stein, Global Talent Acquisition Manager, explaining that “[b]ased on the parameters of CB&I’s account with CareerBuilder, the job posting was posted on CareerBuilder’s job board first and fed immediately to CB&I’s career page.”

The CO acknowledged that the Department of Labor (DOL) permits an employer to submit “alternative evidence” in the absence of “the primary evidence suggested by the regulation.” The Round 10 FAQs  (May 9, 2007) advise that an employer must respond to an audit with the documentation required by the regulations. “However, if the employer does not have the primary evidence suggested by the regulation,” the FAQs continue, “it may attempt to satisfy the request through the use of alternative evidence not specifically listed in 656.17. In the case of the employer’s web site, in the absence of a copy of the posting, the employer may provide an affidavit from the official within the employer’s organization responsible for the posting of such occupations on the web site attesting, under penalty of perjury, to the posting of the job.” The FAQs warn, “Whether such evidence will be accepted depends upon the nature of the submission and the presence of other primary documentation. The more primary evidence is not provided, the more likely the audit response will be found to be non-responsive.”

In the instant case, the CO determined that the affidavit provided was not sufficient to “demonstrate a logical nexus between the job listed on the ETA Form 9089 and the placement of an advertisement on the employer’s Website to allow the Certifying Officer to verify the appropriate use and compliance of the employer’s Website advertisement as an additional recruitment step.”

The case was forwarded to the Board of Alien Labor Certification Appeals (BALCA) for review. BALCA cited the regulations at 20 C.F.R. § 656.17 (e)(1)(ii)(B), which state that “[t]he use of the employer’s Web site as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.” For this reason it is critical to maintain prints of online postings in case of an audit. Furthermore, the proofs of the posting should not only document the dates the ad ran, but should demonstrate the “actual content” of the ad in order to prove the advertisement was posted in good faith and in accordance with the position listed on ETA Form 9089 [Spring Branch Independent School District (March 2016)].

The Board noted however that, as the CO affirmed in the denial, the employer may submit alternate documentation such as an affidavit. Previous BALCA decisions, such as Amneal Pharmaceuticals, LLC (October 2016), have applied a flexible interpretation to the requirement to provide documentation of the employer’s website, so that employers can document their recruitment efforts through “reasonably equivalent alternative methods.” In this case, because the employer submitted a dated copy of the CareerBuilder post, which contained the full advertisement, and provided an affidavit attesting that the CareerBuilder post was directly uploaded from CareerBuilder to the employer’s website, the Board concluded that this documentation was “reasonably equivalent to a dated copy of the website job advertisement and thus satisfied the requirements of 20 C.F.R. § 656.17 (e)(1)(ii)(B).” BALCA ordered that the denial be reversed.