‘Vague’ Salary on Job Orders Can Lead to Denial

From: USADNEWS Volume IX, Issue 6 December 2015

There has been a recent increase in denials of PERM applications in cases where the recruitment advertisements display a salary as “Competitive,” “Depends on Experience (DOE),” “Negotiable,” or “Other.” The Department of Labor (DOL) is denying applications that use this or similar language to describe the salary, in spite of the fact that the regulations do not require employers to list a salary in their advertisements. The Preamble to the regulations notes, however, that if an employer chooses to include a salary, “the wage rate must be equal to the prevailing wage rate or higher” (69 Federal Register at 77348).

In its denials, the DOL has taken the position that such terms as “Competitive,” “Depends on Experience (DOE),” “Negotiable,” or “Other” are indeed expressions of salary and that they are so vague as to be misleading to job seekers, resulting in an insufficient test of the labor market. The DOL argues that if a salary is expressed at all in an advertisement, it must provide sufficient detail about the wage offered.

This interpretation creates some concern about State Workforce Agencies and other job posting sites that require employers to list salary information, but allow them to choose generalized descriptions from a dropdown menu in lieu of displaying the specific wage. The Pennsylvania Workforce, for instance, requires salary to be submitted on the posting, but allows employers to show only “Competitive Salary” to job seekers.

During the last DOL stakeholder meeting in October, the American Immigration Lawyers Association (AILA) asked for consideration on this issue in light of these restrictions employers face from posting sites. The DOL agreed to review the issue and possibly issue an FAQ on the matter in the future, but would not concede to suspend the denial of PERM applications on this point.

AILA is asking for members to submit reports of any denials as a result of this issue through the Call for Examples on their website.

USADWEB will advise you when a job order site requires salary to be listed. When an employer does not wish to display a specific wage on the posting, we often have the option of selecting “Not Applicable” or “Will Discuss With Applicant.” Please advise your advertising representative if you have a specific preference for displaying salary.