The Board of Alien Labor Certification Recently reversed the decision of the US Department of Labor Certifying Officer (CO) on the basis that employer complied with the regulations regarding notice of its employee referral program.
The case is known as Clearstreat Bankings issued by BALCA on March 30, 2010. In this case, the employer had filed a PERM application for labor certification in which it used the employer referral program as one of its alternative recruitment steps.
PERM regulations require the employer to engage in four (4) main recruitment campaigns to show that the permanent employment of the alien in the particular position will not displacing equally qualified US workers. These recruitment campaigns include: 1) Two published ads in a newspaper of general circulation in the area of intended employment; 2) Posting a “job order” at the State Workforce Agency; 3) choosing three from 10 alternative recruitment steps identified in the regulations; and 4) post an internal notice that the employer is about to file an application for alien labor certification. All of these recruitment campaigns must primarily be completed by the employer at least 30 days prior to filing the PERM application.
The alternative recruitment steps mentioned above would require the employer to choose three of the following additional recruitment steps: on campus recruitment, career or job fairs, employer website, radio and television ads, local and ethnic papers, job search website, trade or professional journals, campus placement office, private employer firm, and employee referral program.
In the Clearstreat Banking case, the employer had utilized the employee referral program as one of the three additional recruitment steps. The USDOL Certifying Officer initially issued an Audit Request. The employer provided documentation of its recruitment activities in its audit response including documentation of the employee referral program utilized. The Certifying Officer denied the PERM application on the ground that it failed to comply with the regulations 20 CFR §656.17 in that the memorandum used by the employer in such employee referral program did not have “dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.” Id. The problem the Certifying Officer found was that the memorandum which was passed around to the company employees stated that there are incentives in accordance with the company’s established referral program but did not specify the incentives. It was on that basis did the Certifying Officer deny the PERM application.
Having first filed an unsuccessful motion for reconsideration with the USDOL Certifying Officer, the employer filed an appeal with BALCA whith which he attached a copy of the company’s referral program that had been in place since 1998. BALCA agreed that the employer’s employer referral program notice complied with the regulations in that it stated that “an incentive” existed and that it referred the employees to the internal employer referral program which provided specific details relative to such incentives.