BALCA Case Examines General Circulation Paper for Non-Professional Position

From: USADNEWS Volume VII, Issue 5 July/August 2013

The question of what constitutes an appropriate paper of general circulation to fulfill the mandatory Sunday advertisement requirement for both professional and non-professional positions has long been debated. In the Matter of Capitol Building Services, Incorporated, a recent case decided before the Board of Alien Labor Certification Appeals (BALCA), the issue was taken up again.

In this case, the employer advertised for a non-professional position of Cleaning Supervisor in two Sunday editions of the Washington Examiner. The Certifying Officer (CO) denied the application on the basis that the Washington Post is a more suitable newspaper of general circulation for the Washington D.C. metro area. The employer filed a request for reconsideration based on three key arguments: that the Virginia courts have ruled that the Washington Examiner is in fact a newspaper of general circulation; that the Department of Labor (DOL) regulations do not require that the Sunday advertisements be placed in a newspaper of the highest circulation, but rather a newspaper of general circulation; and that the CO has been inconsistent in its treatment of the Washington Examiner for use in PERM cases.

The employer further argued that the Washington Examiner would be more likely to elicit responses from available workers because it is a free newspaper, as opposed to the Washington Post, which costs $2.00 for a Sunday edition. Counsel for the Washington Examiner observed that the newspaper is distributed throughout the Washington D.C. metro area and therefore the size of its circulation should not be the determining factor in its ability to bring responses.

In his reconsideration, the CO asserted that the status of the Examiner as a newspaper of general circulation was not at issue, but rather the question was whether it was the newspaper most appropriate to the occupation and to bring responses from workers who were likely to apply. Because applicants will seek out newspapers that they believe contain the types of positions for which they will apply, the CO set forth two factors that would determine the appropriateness of one newspaper over another: the nature of a newspaper’s job classified section and the size of that classified section. The CO went on to compare the two classified sections of the Washington Post and the Washington Examiner and determined that the Post contained a larger job classified section of approximately 400 or more positions compared to only 35 positions advertised in the Examiner, and that those positions represented a wide range of professional and non-professional positions whereas the Examiner primarily ran non-professional positions. Therefore the CO concluded that the Washington Examiner did not qualify as the most appropriate newspaper of general circulation.

The employer argued on appeal that advertising in the Washington Examiner fulfilled the requirement for a newspaper of general publication and that beyond that the PERM regulations do not require that an employer must determine which publication is “best” out of multiple publications available that meet the requirement. Furthermore the employer contested the CO’s use of the number of positions run in a classified section as a criterion for determining an appropriate newspaper because that criterion is not mentioned in the regulations. The employer also argued that the DOL should defer to the various states in determining what constitutes a newspaper of general circulation, in which case Virginia has determined that the Washington Examiner does meet those guidelines.

In reviewing this case, BALCA considered a previous case that dealt with the choice between the same publications. In Intercontinental Enterprises, Inc. (see the September/October 2012 issue of USADNEWS) the employer ran two Sunday newspaper advertisements for the position of Senior Food Technologist. They chose to run the advertisements in the Washington Examinerinstead of the Washington Post and their application was consequently denied. BALCA upheld the denial in that case, citing the regulatory history of the PERM regulation, which states that job seekers looking for professional positions would be more likely to consult the metropolitan newspaper with the largest circulation. Therefore, for professional positions requiring advanced degrees, BALCA concluded that the newspaper with a larger circulation and more substantial classifieds section would be the more suitable option.

Contrasting that to the case at hand, BALCA noted that this job was a non-professional position that only required two years of experience. The same passage in the regulatory history goes on to state that “it would be appropriate to advertise in a suburban newspaper of general circulation for nonprofessional occupations, such as jewelers, houseworkers or drivers.” A clear distinction is made between the type of paper that is appropriate for professional and non-professional positions. The panel in Intercontinental Enterprises, Inc. already noted that the Examiner is not a mere suburban newspaper. It has a large circulation in the area of intended employment. And the CO himself pointed out that it runs advertisements for primarily non-professional positions, which the regulatory history clearly states is appropriate. BALCA also considered that the cost of the newspaper may be a factor in which paper a reader selects, but declined to comment on how strong a factor it may be. With one dissenting opinion, BALCA ordered that the alien labor certification be granted.

The case is relevant to employers who are faced with the choice between two newspapers of general circulation in the same area. For instance, when having to choose between the Chicago Tribune and the Sun Times, or the New York Times and the New York Post, employers should consider which paper will be more appropriate to the position depending on whether the position is professional or non-professional.  USADWEB can help by providing circulation figures and information on the newspapers’ classified sections.