BALCA Reaffirms Newspaper Headquarters Does Not Determine Circulation Area

From: USADNEWS Volume IX, Issue 4 July/August 2015

The Board of Alien Labor Certification Appeals (BALCA) has taken up the issue in the past of a newspaper’s headquarters address and how it affects the selection of an appropriate paper of general circulation. The Department of Labor (DOL) regulations at 20 C.F.R. § 656.17(e)(1)(i)(B)(1) require an employer to advertise in two Sunday editions of a newspaper of general circulation in the area where the job is located. In the recent Matter of Hoffman Enclosures Inc., d/b/a Pentair Technical Products (August 2015), BALCA reaffirmed that a newspaper’s area of circulation is not determined by where the newspaper is published.

The Certifying Officer (CO) denied the employer’s application for labor certification because the employer advertised one Sunday in the San Antonio Express-News, which is headquartered four hours away from Pharr, Texas, where the job is located. The employer ran their second Sunday ad in The Monitor, which was not challenged by the CO. The employer requested reconsideration on the basis that the San Antonio Express-News is circulated throughout South Texas, including the city of Pharr. The circulation department at the Express-News verified this information. The employer argued that based on the wide circulation of the newspaper, including its circulation in a major metropolitan area such as San Antonio, this paper was the best choice to test the “largest pool of available U.S. workers.”

BALCA upheld the employer’s argument, based on “uncontroverted evidence that the Express-News is a newspaper of general circulation in Pharr….Accordingly, because the Express-News is a newspaper of general circulation in the area of intended employment, the fact that it happens to be published in San Antonio is of no legal consequence.” This is consistent with BALCA’s decision in the Matter of Wal-Mart Stores Inc (March 2013), which concluded that the CO was confusing the address where a newspaper is headquartered with its area of circulation.

The Board further noted that in areas where more than one paper is circulated, the responsibility of the CO is to determine whether the employer has advertised in the more “appropriate” paper of general circulation, regardless of where the paper is published. “Nothing in the regulations requires an Employer to use the newspaper with the highest circulation in the area of intended employment, nor does anything in the regulations require an Employer to use a newspaper published closest to the area of intended employment.” The Express-News circulates in Pharr; therefore the employer satisfied the requirement to advertise in a paper of general circulation in the area of intended employment. However, BALCA declined to elaborate on what constitutes the more appropriate paper when there is a choice between two papers, because the CO did not make that a basis of the denial.