BALCA Definitively Addresses Use of Same Paper for Sunday and Local Ads

From USADNEWS Volume XII, Issue 3

USADWEB  has chronicled the decisions of the Board of Alien Labor Certifications Appeals (BALCA) in recent years regarding the use of the same publication to satisfy the mandatory Sunday advertisements and additional recruitment in a local or ethnic newspaper.

The question has been debated in three separate cases between 2012 and 2014:

Symrise, Inc. (May 2012) – The employer advertised two Sundays and one weekday in the Bergen Record. Although the case was later vacated on procedural grounds when the employer withdrew its original application, the panel determined that nothing in the regulations prohibits an employer from using the same media for both the mandatory Sunday recruitment and the additional local newspaper recruitment step, as long as the publication can be considered both a general circulation and a local newspaper.

JM Youth Corp (Dec 2012) – The employer advertised three times in the Los Angeles Times. BALCA decided in favor of the Certifying Officer’s (CO) argument that the same publication cannot be used to satisfy both the mandatory Sunday advertisements and the additional recruitment steps. The panel stated, “The regulations list two separate requirements, indicating two separate newspapers are required. The Employer cannot argue the same newspaper is both generally circulated and local under the regulations.”

Delta Search Labs, Inc. (April 2014) – The employer advertised two Sundays and one weekday in the Boston Globe. The employer argued that placing the advertisements on different dates with different circulation figures qualified these as separate recruitment methods. The Board in this case agreed with the decision in Symrise that a single newspaper can be used for both recruitment steps so long as it serves as both a newspaper of general circulation and as a local paper, and did not find that the employer’s use of a single paper for two methods was “hostile to the intent of the regulations.” The Board made a distinction between an employer attempting to use one of the Sunday advertisements to double as a local newspaper ad, and the employer in this case running a third advertisement on a different date in the same newspaper when that publication also qualifies as a local paper. The Board agreed with the employer that the difference in the Globe’s Sunday and daily circulation figures indicated that the paper serves as both a paper of general and local circulation reaching different applicant populations.

In the Matter of Bank of America (Sept 2016), BALCA reviewed the opinions in all three previous cases in order to render a more comprehensive decision in the current case.

In this case, the employer advertised for a professional position of Consultant – Apps Prog in Addison, TX in two Sunday editions and one mid-week edition of the Dallas Morning News. The employer submitted the mid-week run to satisfy the use of a local or ethnic newspaper as an additional recruitment step per the regulations at 20 C.F.R. § 656.17(e)(1)(ii)(I).

The CO denied the case under the regulations at 20 C.F.R. § 656.17(e)(1)(ii), which require an employer to “select three additional recruitment steps” when advertising for a professional position. The CO interpreted the term “additional recruitment” to require the use of an entirely separate recruitment medium from that used to satisfy the mandatory Sunday advertisements in a newspaper of general circulation. The CO stated, “The duplication of a previously used recruitment step cannot, by definition, be considered as an additional recruitment step.” The CO considered the dual use of a single recruitment source as defeating the purpose of requiring the employer to use three additional recruitment steps “to ensure that the greatest number of able, willing, qualified, and available U.S. workers is apprised of the job opportunity” and the intent that each step “target slightly different applicant populations.”

The employer asserted that the advertisements were in fact carried out as individual, distinct steps. The Sunday ads ran 10/31/2010 and 11/07/2010. The additional recruitment ran on a weekday on 11/9/2010. Noting that the regulations offer no details on the selection of a local or ethnic newspaper except where the preamble to the Final Rule “explicitly requires that an employer advertise in the local and ethnic newspapers to the extent they are appropriate for the job opportunity,” the employer argued that the use of the Dallas Morning News as a local paper was completely appropriate to the position. The paper has a daily circulation of 264,459, which ranks 11th in U.S. newspaper circulation, covers the local area, and is the most likely to bring responses from qualified candidates for a professional IT position. The employer cited Symrise in support of their appeal.

BALCA reviewed the previous case law and echoed the conclusion that the regulations do not explicitly prohibit the use of the same media as a general circulation and a local paper. It found that a “reasonable question is presented, however, whether the regulations implicitly require that different media be used.” The Board determined that the answer to this question hinged on whether an Office of Foreign Labor Certification (OFLC) FAQ prohibiting the use of the same media source for two recruitment steps imposes a “substantive requirement” that goes beyond the scope of the regulations. In reviewing this FAQ, the Board referred to Health America (July 2006), which held that FAQs may not impose substantive rules and that the interpretative authority of an FAQ “depends on the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.”

The FAQ clearly interprets the requirement of additional recruitment to mean separate media sources in order to qualify as additional steps, and even cites the use of a third advertisement in the newspaper of general circulation as an example of a duplication of methods. The CO relied on this interpretation in denying the employer’s application. The FAQ reasoned that the purpose of the additional recruitment is to ensure the “greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity.” As employers in Symrise and Delta have argued, this can be accomplished by advertising in a local paper with the greatest circulation. However, the FAQ also establishes that the ads should reach a different applicant population to cover a broader range of candidates and not just a greater number, in order to “more adequately substantiate[] an employer’s claim there are no available U.S. workers for the job offer.” If the intent of the regulations is to reach different pools of applicants, then by default, the ads must be run in separate media sources.

BALCA weighed the authority of this FAQ and determined that, although it was reasonable in its own right, this interpretation “adds a substantive requirement that is neither found in the PERM regulations nor supported by the regulatory history” and that as such it “went beyond mere interpretation of the regulatory text.” The Board pointed to the regulation at C.F.R. § 656.17(e)(1)(ii)(C), which allows an employer to use an advertisement placed on a newspaper’s website in conjunction with the print ads as a posting on a job search website other than the employer’s. This permission in the regulations to use the same media vendor, the Board reasons, “somewhat undermines the conclusion that different media sources were intended for the additional professional recruitment steps.”

Therefore, where a newspaper qualifies as both a local and general circulation paper, the regulations do not prohibit an employer from using the same media to satisfy both recruitment steps.