BALCA Vacated CO determination - Violation of Due Process

Posted On: December 23, 2010

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Pharmacist."

The CO accepted the Employer’s Application for Permanent Employment Certification which stated the job required a bachelor’s degree in Pharmacy and a “Valid Florida Pharmacist license or ability to obtain a license” for processing on December 31, 2009. To show fulfillment of the advertising and recruitment requirements, the Employer gave evidence of postings in two papers. Citing the ad print in Pharmacy Today, a professional journal, the CO said it did not qualify as the required second advertisement because the job listed didn’t require experience or an advance degree and therefore denied certification. After the Employer reviewed the denial letter from the CO, the Employer asked that the advertisement in Pharmacy Today be allowed in light of the fact that the standards for the job were changed to 6 years in the PharmD program as well as experience in the field. Further, the Employer argued that advertising in that journal offered a larger pool of more highly skilled applicants needed for the job and that finding a qualified person for the job is highly difficult. In the appeal, the CO stuck to the denial of the application stating that even though Pharmacy job requirements have increased, CVS is not asking for someone with those requirements to fill the job. On the other hand in the appeal, the employer argues it only advertised that the job required a bachelor’s degree in order to “recruit based on the largest applicant pool,” which would include those individuals who were not affected by the increase in requirements in 2000 because of a grandfather clause. The Employer goes on to argue that states have different licensure standards for pharmacists before that licensure can be awarded.

PERM regulation 20 C.F.R. 656.17(e)(l)(i)(B)(4) controls and it provides that an employer may advertise in a professional journal in place of a Sunday advertisement if the job in question requires “experience and an advanced degree.”

In the instant case, the CO denied certification on the grounds that the Employer placed an ad in a professional journal even though the application only stated the requirements for the job included a Bachelor’s degree and no experience. After reviewing the case BALCA determined the CO dismissed the Employer’s argument on appeal and simply forwarded it to the Board. Further citing a previous decision, 2010-PER-628, BALCA decided the Employer was not given the right to argue the case before the CO, violating due process. The case was returned for further review and to allow the Employer to fully present his argument dismissed by the CO.
Accordingly, the Board vacated the decision of the CO in denying labor certification.