Weekend Edition Satisfies Sunday Requirement

From: USADNEWS Volume IX, Issue 3 June 2015

When filing an application for labor certification, the Department of Labor (DOL) regulations at 20 C.F.R. § 656.17(e)(1)(i)(B)(1) require an employer to advertise the position in two Sunday editions of a newspaper of general circulation in the area where the job is located. In the Matter of Earthbound Farm (May 2014), the employer advertised in the Salinas Californian for the position of an SQL Database Administrator. The position was located in San Juan Batista, California.

The Certifying Officer (CO) denied the case because the Salinas Californian is not circulated on Sundays. The Salinas Californian publishes a “weekend edition,” which publishes on Saturday. The CO stated that there are other newspapers in the area that do have Sunday circulation that the employer could have chosen, although the CO did not identify what those papers were. The employer challenged the denial, arguing that San Juan Batista borders the city of Salinas and that the Salinas Californian is the most commonly-read newspaper by residents in the area of the intended job location. The employer provided documentation of the paper’s distribution zones in support of this claim.

Furthermore, the employer asserted that the regulations require only that an employer publish on two different Sunday dates, but do not specify that the employer must publish exclusively on Sundays. Because the weekend edition of the Salinas Californian is considered to cover both Saturday and Sunday run dates, the ads must be considered as meeting the criteria to publish in a Sunday edition. As further proof of this argument, the employer provided the tearsheets, which state the edition dates as running Saturday to Sunday. The front page of one of the tearsheets identifies the edition as “Saturday, February 28 – Sunday, March 1, 2009,” clearly covering both dates.

The employer also provided correspondence from the Main Street Media Group, which publishes the Salinas Californian, confirming that none of the group’s publications in that area publish a separate Sunday edition. As a secondary argument, the employer contended that if the weekend edition does not satisfy the Sunday requirement, it must be acceptable as the newspaper of widest circulation under the exception for rural areas of employment [20 C.F.R. § 656.17(e)(1)(i)(B)(2)].

The case was forwarded to the Board of Alien Labor Certification Appeals (BALCA) for review. BALCA concurred that the regulations do not explicitly state that a Sunday edition must be “printed and distributed on Sunday.” The Board noted that nothing in the regulations nor in the FAQs address this and that there is only limited case law on the matter. In Virginia General Services (April 2007), BALCA denied an employer’s argument that publishing in a Friday edition of a newspaper satisfies the Sunday requirement, even if the paper remains on newsstands throughout the weekend. But in this case, the question involves a paper that specifically publishes a weekend edition, not merely a weekday edition available throughout the weekend.

For additional clarification, the panel reviewed the PERM regulatory history. The introduction of the PERM regulations changed the advertising requirements from any three consecutive days to two Sunday editions. The Employment and Training Administration (ETA) affirmed the effectiveness of newspaper advertisements for recruitment purposes and highlighted their appropriateness for all job categories. According to the ETA (69 Federal Register at 77344):

A review of the classifieds, especially Sunday editions, shows that newspaper advertisements are still customary for both high-tech and non-high-tech jobs….The requirement that print advertisements appear in the Sunday edition of a newspaper of general circulation most appropriate for the occupation and the workers likely to apply for the job ensures the advertisement will reach the widest possible pool of potentially qualified applicants.” The ETA went on to recognize that in rural areas where no Sunday edition exists, the employer may use the edition with the widest circulation in the area.

Taking this regulatory history into account, the Board determined that the purpose of running advertisements in a Sunday edition was to reach the “widest possible pool of potentially qualified applicants.” Therefore, because the Salinas Californian is the major paper of general circulation serving the area, and likely job applicants in the area would rely on the weekend classifieds section when searching for jobs, the Board decided that the Saturday-Sunday edition is “functionally the equivalent of a Sunday-only newspaper edition.” The Board did not address the issue of whether San Juan Batista was considered a rural area because they decided the matter on the basis of the employer’s primary argument. BALCA reversed the denial and granted the labor certification.