Notice of Filing Must Name the Employer

From: USADNEWS Volume VIII, Issue 7 October/November 2014

The Board of Alien Labor Certification Appeals (BALCA) has unequivocally affirmed that the notice of filing must name the employer, regardless of whether employees might tacitly understand who the company is. The notice of filing is the notification that the employer is required to post at its facility informing employees of its intention to file an application for labor certification. The regulations at 20 C.F.R. § 656.10(d)(4) and 656.17(f) clearly stipulate that the notice of filing must include the name of the employer.

In both the case of TERA Technologies, Inc. and of USA Wool, Inc. (August 2014), the employers neglected to include their company names in the filing notices that were posted. Consequently, the Certifying Officer (CO) denied both applications. TERA argued that because the notice was posted on company premises, referred to “our company,” and listed the name of the company contact who was well known to employees, the CO should have made an exception to the regulations based on a common sense reading of the posting. USA Wool reasoned that if a person inquired about the posting, they would be inquiring with the company, which is the only wool processing facility in the area. It also noted that the company name was included in the newspaper advertisements.

Both cases were referred to separate BALCA panels for appeal, both of which upheld the CO’s denials. Both panels cited a previous decision in Robert Venuti Landscaping (October 2010) and determined that “an employer’s failure to include its business name on the notice of filing is fatal to the application.” In response, both employers filed petitions for en banc review. USA Wool contended that the panel’s decision “was simply a rigid enforcement of a government regulation with no consideration for the intent of the rules.” Both employers argued that the decision conflicted with previous decisions such as Stone Tech Fabrication (January 2009), in which the panel asserted that “technical interpretation of the regulations has defeated common sense.”

The en banc panel found that the two cases that rely on Stone Tech to excuse the omission of the employer’s name are “a rare exception” and should not be treated as the rule. According to the Matter of Alexandria Granite & Marble (May 2010), the regulations require an applicant to “strictly adhere to the rigorous regulatory requirements.” This reasoning was even upheld in a district court case when the Department of Labor (DOL) was forced to defend the Board’s denial in the Matter of Country Landscaping & Supply Inc. (January 2013) for the same reason. The district court found no reason to grant the employer a special exemption from the regulations, no matter how minor the employer claimed that error to be. The court considered the employer’s name to be “critical information,” and omitting that information in direct contradiction of what the regulations require, is not the same as making a technical or typographical error.

The en banc panel in the present case pointed out that “the clarity of this requirement…and the ease with which an employer should be able to comply with this requirement belie any suggestion that strict enforcement of this requirement offends fundamental fairness or procedural due process.” In its decision, the Board quoted the district court’s ruling in Country Landscaping, that to offer an exception to the rule would in effect “serve to swallow the rule.” BALCA therefore upheld the CO’s denial of both applications for failure to name the employer in the notice of filing.

It is not only the notice of filing, however, that requires the employer’s name to be listed. The regulations at 20 C.F.R. 656.17(f)(1) also require that advertisements placed in newspapers of general circulation or in professional journals must “name the employer.” As always, USADWEB will review your ad text and inform you if we notice that the employer’s name is missing from the text. Some clients feel that the employer name as part of the job’s reply-to email address is sufficient. However, most clients specifically state the name of the employer so as to clearly comply with the regulations.