Travel Requirements Reviewed in BALCA Cases

 From: USADNEWS Volume VI, Issue 2

 

Several recent cases have dealt with the issue of travel requirements being included in advertisements. Often the denial or approval of an application hinges on the variation of a few words.

Most recently, the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of certification in the matter of Deloitte Financial Advisory Services LLP. In this case, the Employer listed “various unanticipated Deloitte locations & client sites nationally” on the ETA Form 9089 but made no mention of travel requirements in the advertisements. BALCA concluded that the job description viewed by U.S. job seekers was not accurate or specific enough to apprise them of the position offered to the foreign worker and may have deterred some workers from applying. The Certifying Officer’s (CO) denial was therefore upheld.

In the matter of Microsoft Corporation, however, the Employer did list travel requirements in the advertisements. The CO denied the application in this instance because no travel requirements were listed on their application. The Employer argued that their advertisements were placed to recruit for multiple openings and contained varying job requirements, including the phrase “may require employer-reimbursed travel.” The Employer based their argument on the Department of Labor (DOL) Stakeholders Telephone Conference on June 22, 2010, in which the DOL advised that the phrase “some positions may require travel” may be used for recruitment advertisements covering multiple positions with differing requirements. The Employer maintained that the phrase “some positions may require travel” was not materially different from the phrase “may require travel” when used in an advertisement clearly relating to multiple positions, and that no U.S. worker would have been deterred from applying based on that language.

The notes from the telephone conference state the following:

In the example provided, “some positions require travel,” the lack of a travel requirement on the ETA 9089 would not be an issue, as the ad makes clear that some – but not all – positions may require travel. However, if the ad stated “travel may be required,” and there was no travel requirement listed on the ETA 9089, DOL could find that the ad was not appropriate, as applicants would not know that travel was not required for all positions.

BALCA considered previous decisions in Xasis Solutions (July 2011), American Express Travel Related Services (August 2011), and Technofina (March 2011) and determined that these cases related to single job opportunities only in which a travel requirement was or was not listed, and therefore did not apply to the instant case.

The advertisements in the case of Microsoft Corporation clearly stated the Employer was recruiting for multiple positions through the use of plural language (“Marketing and Product Mangers) and through the description of various educational requirements (“requires a BA/BS, MA/MS, or MBA degree or equivalent in Business, Marketing, Engineering, Computer Science, Design, or a related field”). Consequently, BALCA determined that “some positions” was clearly understood to be the subject of each sentence and that therefore the use of the language “may require employer-reimbursed travel” is sufficiently comparable to the phrase supplied by the DOL. The Board remanded the case for certification.