BALCA upholds Final Determination finding lack of good faith in recruitment

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Operations Foreman.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a metals distributor filed a LC on behalf of an alien worker in April of 2001. The LC was denied on three grounds. First, the Employer did not recruit in good faith because it had only tried to contact applicants by telephone, and had not attempted the alternative of writing to those applicants. The CO found that the Employer’s rebuttal response, which was an offer to re-advertise, was not a remedy for lack of good faith in recruitment. The CO also denied the LC based on the Employer’s rejection of U.S. applicants for lacking experience not specified as a job requirement in the ETA Form 750A, and its failure to establish that the Alien had such experience prior to being hired by the Employer. Thereafter, the Employer requested BALCA review.

Upon BALCA review, it was determined that an employer must take steps to ensure that it has obtained lawful job-related reasons for rejecting U.S. applicants, and did not stop short of fully investigating an applicant’s qualifications. Pursuant to 20 C.F.R. § 656.21(b)(6), an employer must show that U.S. applicants were rejected solely for lawful job related reasons. Case law provides that although the regulations do not explicitly state a “good faith” requirement in regards to post-filing recruitment, such a good faith requirement is implicit. The Board’s case law states that an employer who does no more than make unanswered phone calls or leaves a message on an answering machine has not made a reasonable effort to contact the U.S. worker. In such a case, the employer should follow up with a letter.

A look at case law reveals that a CO is not required to permit an employer to re-advertise where the citation is grounded in a lack of good faith recruitment. Due to the fact that the CO was not obligated to permit the Employer to re-advertise to cure a lack of good faith recruitment efforts, the Board affirmed the denial of certification.

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