Use of Local and Ethnic Papers Challenged by DOL Audits

From: USADNEWS Volume VII, Issue 3 April/May 2013

The use of local and ethnic papers has come under increased scrutiny by the Department of Labor (DOL) in the past year. This has presented unusual challenges for employers and attorneys filing labor certification appeals, forcing them to navigate around potential audits without any clear guidance.

The regulations at 20 CFR § 656.17(e)(1)(ii)(I) state 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.” No mention is made about choosing an appropriate newspaper, and no guidelines are provided for determining what an appropriate local or ethnic paper would be. Nevertheless, denials are being issued on the basis that the choice of paper was not appropriate.

Furthermore, the DOL seems to have established a specific list of criteria for determining what qualifies as an appropriate local or ethnic paper:

• The newspaper should reach the greatest number of qualified and available workers
• The newspaper must be known to contain advertisements for similar or the same job opportunities
• The newspaper must have a substantial classifieds section including both professional and non-professional positions
• The newspaper must be “most likely to bring responses from available U.S. workers”

Some of these criteria seem to contradict the DOL’s position in the Matter of Symrise Inc., where the employer attempted to use the Bergen Record to fulfill both their Sunday advertising and an additional recruitment step. In their appeal, the employer argued that the Record was an appropriate choice as a local newspaper because it had a much greater circulation where the job was located than the other local community newspapers. This suggests that the newspaper would reach the greatest number of workers and would most likely bring the most responses from job seekers. The Certifying Officer (CO) responded that circulation figures were not a factor in determining an appropriate local paper.

The catch-22 that this situation creates is that the DOL seems to be auditing newspaper choices against a standard that is impossible to quantify. If circulation is not a factor in determining an appropriate local newspaper, then how do you ensure that you’ve met the DOL’s standard that the newspaper must reach the most qualified or available applicants? If the purpose of the local and ethnic newspaper is to reach a different application population than the general newspaper, as the DOL argued in Symrise, how does the employer reconcile that goal with the additional task of selecting a paper with most substantial classified section?

The lack of clarity on these points leaves employers with little concrete guidance other than to follow the general “good faith” mandate. USADWEB is ready to assist by researching various newspaper options for free, to help you determine an appropriate local or ethnic paper for your cases that can withstand a potential audit.