Certifying Officers Cannot Impose ‘Substantive Requirements’ Not Included in Regulations as Basis for Denial, BALCA Says

From USADNEWS Volume XII, Issue 3

A recent case decided by the Board of Alien Labor Certifications (BALCA), the Matter of Gallup McKinley County Schools (October 2017), addresses not only the selection of an appropriate local paper, but also the scope of the Certifying Officer’s (CO) authority to deny labor certification appeals under the regulation at 20 C.F.R. § 656.24(b)(2).

The regulation at 20 C.F.R. § 656.24(b)(2) states: “The Certifying Officer makes a determination either to grant or deny the labor certification on the basis of whether or not:…[t]here is in the United States a worker who is able, willing, qualified, and available for and at the place of the job opportunity.”

In the instant case, the CO cited this regulation as the basis for its denial of the employer’s application for the position of a Teacher in Gallup, New Mexico, because it considered the employer’s choice of the Navajo Times as a local paper to be “inappropriate and not a local/ethnic newspaper most likely to bring responses from qualified, interested and available U.S. workers.” The CO held that the Navajo Times did not qualify as a paper most likely to bring responses for five reasons:

•The classifieds section did not include recruitment ads from across a wide array of industries
•Recruitment ads were included among other “general advertising”
•The paper is distributed across all Navajo reservations, not solely in the area of intended employment
•The edition zone that specifically covers the area of intended employment has a circulation of only 2,500 papers
•The Gallup Independent newspaper publishes in the area of intended employment with a circulation of 13,506 and, in the CO’s estimation, would have attracted a larger number of available candidates

The employer responded that the Navajo Times actually had the potential to attract a greater number of candidates because it was distributed in all edition zones for a total circulation that is greater than the Gallup edition alone. The employer also noted that it was recruiting for a teacher at a school with a “diverse and rural student body comprised primarily of Navajo Indian children” in Gallup, New Mexico, which is “the largest American Indian center in the Southwest.” The Navajo Times, distributed across Navajo reservations, as well as in many colleges and universities, would reach an audience well suited for and interested in the job opportunity. The CO even acknowledged that, while the paper did not contain advertisements for a variety of industries, it did contain ads for other teaching positions.

Furthermore, the employer contended that the CO overstepped its reach by holding the employer’s recruitment methods to a higher standard than the regulations stipulate. The regulation concerning the use of local and ethnic papers, 20 CFR § 656.17(e)(1)(ii)(I), states only: “The use of local and ethnic newspapers can be documented by providing a copy of the page in the newspaper that contains the employer’s advertisement.” The preamble to the PERM regulations states that a local or ethnic newspaper should be “appropriate for the job opportunity,” but offers no guidelines for determining what would qualify a paper as appropriate.

By contrast, the regulation at 20 CFR § 656.17(e)(1)(i)(B)(1) requires the mandatory Sunday advertisements to be placed in a newspaper of general circulation “most likely to bring responses from able, willing, qualified, and available U.S. workers.” This detailed language is noticeably absent from the regulation pertaining to local and ethnic newspapers. The employer referred to the principle of statutory construction as laid out in Russello v. United States, which affirms that where Congress “includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” BALCA previously used this same line of reasoning in its 2012 en banc decision regarding State Workforce Agency (SWA) job order regulations. The employer argued that because of this, it is immaterial to compare the Navajo Times to any other available local newspaper to determine which would be more likely to bring responses.

BALCA upheld the employer’s argument that the CO had overreached. Citing Tek Services LLC (November 2016) and Synergy Global Technologies Inc. (December 2016), the Board reasoned that a CO cannot use the regulation at 20 C.F.R. § 656.24(b)(2) as carte blanche to deny certification by imposing “substantive requirements beyond those included in the regulations.” The panel quoted Tek Services LLC, which states that this provision is not a “catch-all denial ground encompassing any employer action that the CO deems problematic.”

The regulations governing the use of local or ethnic newspapers are silent on what criteria should be used for selecting a publication. The preamble to the Final Rule only requires that the local or ethnic newspaper be “appropriate for the job opportunity.” The employer satisfactorily demonstrated that it had selected a newspaper that was appropriate to the job being advertised; a newspaper primarily serving the Navajo Indian community and that contained other advertisements for teaching positions. Beyond that, the CO cannot impose regulations that pertain explicitly to the mandatory Sunday advertisements to its assessment of the employer’s choice of a local or ethnic paper.

Because this language is absent from the section regarding local and ethnic newspapers, an employer is not obligated to select a local paper “most likely to bring responses from able, willing, qualified, and available U.S. workers.” A CO cannot deny an application on the grounds that it violates “a new substantive requirement” that is not included in the regulations as they are written. BALCA therefore ordered that the denial be reversed.