Work From Home Option Must Be Included in Advertisements

From: USADNEWS Volume VII, Issue 5 July/August 2013

USADWEB  often sees recruitment cases for positions that allow a work from home option. A recent Board of Alien Labor Certification Appeals (BALCA) case emphasizes the importance of including this information in the advertisements. In the Matter of Siemens Water Technologies Corp., the employer’s application was denied because the work from home option was not presented to potential applicants.

The employer listed the foreign worker’s home address as the primary worksite address on the ETA Form 9089 and explained in their audit response that the position allows for the employee to work from home and to travel to various client sites as needed. However, because this option was not stated in the advertisements, the Certifying Officer (CO) determined that the advertisements contained “wages or terms and conditions of employment that are less favorable than those offered to the alien,” in violation of the regulations at 20 C.F.R. § 656.17(f)(7). Because of this, the CO concluded that the employer could not attest that the position had been clearly open to any U.S. worker.

The employer argued that the regulations do not require the advertisements to identify the location of employment as a home office, nor is there any prohibition on using a home address in recruitment efforts. They pointed to the minutes from the Department of Labor’s (DOL) Stakeholders Liaison Meeting on March 15, 2007, which advised that the foreign national’s home address may be used as the primary workforce on the ETA Form 9089 and that this can be explained during an audit.

BALCA underscored the employer’s failure to address the more pertinent issue of not offering a work from home incentive in the advertisements. By only listing the job location as “Houston, TX,” the advertisements gave the impression that applicants would be restricted to working only from Houston. While the job location address does not need to be included, the advertisements must advise applicants of any travel requirements and where applicants will likely have to reside. By not indicating that applicants could work from home, the advertisements gave a restrictive impression of where applicants would have to reside to perform the job. This constituted work conditions less favorable than those offered to the alien. Therefore, BALCA upheld the denial of the application.