BALCA Applies Flexible Standards to Documentation of Campus Recruitment

From: USADNEWS Volume VIII, Issue 2 February/March 2014

In the Matter of Micron Technology, Inc. the Board of Alien Labor Certification Appeals (BALCA) accepted a case for review. The Certifying Officer (CO) had denied the employer’s application based on what it determined to be a lack of adequate documentation of two additional recruitment methods: on-campus recruitment and the use of a campus placement office.

To document its on-campus recruitment at a university job fair, the employer provided a printout from its website advertising its participation in the Iowa State University job fair, including the positions being recruited and the university’s name, dates, times, and location of the event.  The printout also showed that the employer’s webpage about the event came up as a result of a search for Iowa State University. The CO took issue with this documentation, claiming that there was no independent confirmation from the university to prove that the event actually took place. BALCA cited the regulations at 20 C.F.R. § 656.17(e)(1)(ii)(D), which state that on-campus recruiting “can be documented by providing copies of the notification issued or posted by the college’s or university’s placement office.” BALCA accepted the employer’s argument that the use of the word “can” indicates a suggestion of what may be used to document this step, not what must be. BALCA noted that even a notice from the university about the job fair, which the CO was requesting, would not confirm that the employer actually showed up.  Therefore, BALCA concluded that the employer was free to use alternative means to prove their completion of this step, and that the printout provided from the employer’s website was sufficient.

The CO also rejected email verification from the university as sufficient proof that the position of “Senior Design Verification Engineer” had been posted by its campus placement office. The CO claimed that the email from the university confirming the posting did not include a copy of the notice of the job opportunity that the employer had provided to the placement office. BALCA referred to the regulations at 20 C.F.R. § 656.17(e)(1)(ii)(H), which state “the use of a campus placement office can be documented by providing a copy of the employer’s notice of job opportunity provided to the campus placement office,” noting again that the use of the word “can” indicates a suggestion and not a requirement of the proof that the employer may submit.

Furthermore, the regulations do not specify what must be contained in the notice of the job opportunity.  Department of Labor (DOL) guidance published in the Federal Register (69 Fed. Reg. 77,347 Dec. 27, 2004) explains that advertisements are not required to list every job duty or requirement but only need to “demonstrate a logical nexus between the advertisement and the position listed on the employer’s application….” The Federal Register further states, “An advertisement that includes a descriptive job title, the name of the employer, and the means to contact the employer might be sufficient to apprise potentially qualified applicants of the job opportunity.” BALCA concluded that the email from the campus office demonstrated that a descriptive job title (“Senior Design Verification Engineer”), the name of the employer, and a means to contact the employer were provided to the campus placement office and that the email was therefore satisfactory to prove the employer’s use of this step.

It is interesting to note that the CO had originally denied the employer’s application for two additional reasons, arguing that the advertisements in the newspaper of general circulation and the job search website did not provide a detailed enough job description. Upon a request for reconsideration based on the Federal Register guidance, the CO reversed its decision and accepted the advertisements.  When BALCA reviewed the case, the Board decided that the CO should have applied the Federal Register guidance to the campus placement notice just as it did to the advertisement text in the Sunday newspaper and job search website.