Tag Archive for: Matter of Emma Willard School

Cora-Ann Pestaina

BALCA Holds That Failure To Disclose A ‘Wage Adjustment’ Is Not A Valid Denial Ground

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Recently, in the representative case, Matter of Cognizant Technology Solutions US Corp, 2013-PER-01488 (BALCA, September 29, 2016), the Board of Alien Labor Certifications Appeals (BALCA) reversed 382 PERM denials finding, most significantly, that the employer’s failure to apprise US workers of its wage adjustment – a variable amount of money to be paid to the employee depending on where they’re geographically based – was not a valid ground for denial.

In the representative case, the employer, in response to an audit notification, submitted a copy of an offer letter that was sent to a U.S. applicant. This offer letter stated a base salary of $117,707.20 and also described a “Cost of Labor Adjustment” or “COLA” as follows:

As eligible, you may be paid a geographically based Cost of Labor Adjustment (COLA) of $250.00 per pay period for Washington, D.C., which is an annualized amount of $6,000. Your COLA on the 15th and last day of each month in accordance with the Company’s current payroll policies and practices, along with your regular base salary. [sic] If your work location changes, then there will be an adjustment to COLA effective the first day of work in your new work location. COLA is subject to regular review and may be increased or decreased, or replaced by another compensation component upon certain promotions.

The Certifying Officer (CO) found that the employer’s Notice of Filing (NOF), which advised of a long and short term travel requirement, failed to also appropriately apprise US workers of the actual terms and conditions of employment. The CO found that the NOF violated 20 CFR §656.17(f)(3) which states that advertisements must “provide a description of the vacancy specific enough to apprise the U.S. worker of the job opportunity for which certification is sought” and 656.10(d)(4) which requires that the NOF “contain the information required for advertisements by §656.17(f).” The CO also found that the job order, Sunday newspaper advertisements, local newspaper advertisement, job search website advertisement and private employment firm advertisement failed to apprise US workers of the COLA and therefore did not appropriately apprise them of the job opportunity in violation of 656.17(f)(3). The CO, in denying the application, held that US workers were not properly notified that they would be appropriately compensated based on the specific geographic area of assignment, which could have impacted whether or not they were willing to apply for the job opportunity.

In its Request for Reconsideration/Request for Review, the employer argued that COLA was a “per diem benefit payment” which did not need to be disclosed based on BALCA’s previous decision in Matter of Emma Willard School, 2010-PER-01101 (BALCA, September 28, 2011). In Emma Willard, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. I previously blogged about this decision here. The employer argued that COLA is a not a guaranteed benefit and can be increased, decreased or replaced by other compensation at any time and to insist that such a benefit be disclosed would be similar to insisting that the employer also disclose benefits such as parking and gym memberships, which the regulations do not require.

BALCA found that the CO correctly classified COLA as a wage adjustment because it is a set amount “per pay period”, even if the exact amount may change, and is paid on the 15th and last day of each month along with the base salary. BALCA further found that this is different from a per diem benefit, which refers to something paid on a daily basis (citing Mirriam-Webster’s definition of “per diem” as “by the day”) or to reimbursements for travel receipts or meals (pointing to the U.S. General Services Administrations’ definition of “per diem” as an allowance for lodging…meals and incidental expenses). BALCA cited the case of Crowley v. U.S., 57 Fed. Cl. 376, 381 (2003) where the court cited a 1990 Conference Report discussing the Federal Law Enforcement Pay Reform Act which stated that a locality adjustment was considered part of base pay. BALCA therefore held that, based on the federal government’s characterization of a locality benefit as part of base pay, COLA must also be considered part of base pay. Since COLA is a wage and not a benefit, BALCA held that the holding in Emma Willard did not apply.

If COLA is a wage adjustment then isn’t the employer required to list it in all its advertisements and on the NOF? BALCA held that since there is no requirement that an employer list a wage in its newspaper advertisements, the employer’s failure to do so is not a violation of the regulations. Also, citing its decision in Symantec Corporation, 2011-PER-01856 (Jul. 30, 2014) which I previously discussed here, BALCA held that the job order and additional recruitment steps could not held deficient pursuant to 656.17(f)(3) because 656.17(f) applies only to newspaper advertisements. If the advertisements were not deficient, then 656.24(b)(2) is not a valid ground for denial because the employer did properly recruit for the position.

But BALCA has left a pretty bloody trail when it comes to lack of disclosures in the NOF. In Matter of KFI, Inc. 2009-PER-00288 (Aug. 25, 2009) BALCA affirmed a PERM denial based on the employer’s failure to list the CO’s address on NOF in violation of 656.10(d)(3)(iii). In Servion Global Solutions, Inc., 009-PER-00282 (Jun. 23, 2009) BALCA held that failure to state the rate of pay constituted grounds for denial. In Matter of Innopath Software, 2009-PER-00153 (Sept. 2, 2009), BALCA held that the absence of the employer name on the NOF, although it was posted in a conspicuous location at the place of employment, was not harmless error. In Matter of G.O.T. Supply, Inc., 2012-PER-00429 (Oct. 6, 2015) BALCA affirmed the CO’s denial where the company president’s name but not employer’s name was listed on the NOF. BALCA said persons providing information to the CO need the employer name as it appears on Form 9089. The NOF is required to contain certain information as specified in 20 CFR § 656.10(d) which provides that the NOF “must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form).” Failure to list the rate of pay wage in the NOF usually constitutes grounds for denial of certification. But this time, the deficiencies of the PERM process and the Form 9089 could not be overcome.

Despite its conclusion that the regulations could reasonably be interpreted to require an employer to state a wage adjustment on a NOF, BALCA declined to affirm the denial because the Employment and Training Administration (ETA) has issued no guidance whatsoever alerting employers that this type of wage adjustment needs to be specifically disclosed in the advertising and on the ETA Form 9089. BALCA also noted that there is “neither an instruction nor a current mechanism by which an employer may enter this information on the Form 9089 and cited Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009) in which case the fact that certain mandatory language pertaining to an alternative requirement under Matter of Francis Kellogg, 1994-INA-465 (Feb. 2, 1998) (en banc), did not appear on the ETA Form 9089 was not fatal as there is no space on the form for such language. Because employers have not been provided with notice of its regulatory interpretation concerning the requirement that COLAs be disclosed and a mechanism by which to disclose COLAs, BALCA could not find the NOF defective.

As an aside, it is also interesting to note that the foreign national resided in Florida rather than in Washington, DC, but BALCA did not attach any significance to this fact. It still raises a question about the importance of differentiating between a future job opportunity in a labor certification and a foreign national’s current employment. It was not clear in the representative case whether Washington DC, which was the subject of the COLA, would be the future position. The PERM labor certification was presumably filed using the employer’s headquarters, and indicated that it would involve working at “unanticipated client locations throughout the US.” If the current position provides a COLA, but the future position that is the subject of the labor certification does not, then the fact that the employer submitted a job offer letter with respect to the current position should not undermine the outcome of the labor certification. In responding to an audit notification, employers must clearly specify whether a job offer letter sent to a US worker applicant is applicable to the future PERM position or to the current position in order to attempt to stave off a similar denial.

Also quite interesting is BALCA’s insertion of a footnote acknowledging that the employer, in its prevailing wage request, negatively answered the question about whether the position will be performed at multiple worksites but then indicated on the Form 9089 that work would also be performed at “unanticipated client locations throughout the US.” BALCA acknowledged that the prevailing wage issued by the National Prevailing Wage Center may have been affected had the employer disclosed the roving nature of the position. BALCA provided no explanation as to why this did not constitute grounds for denial. Possibly because the immigration bar continues to beg in vain for clarification on issues related to roving employees.

This decision follows the trend of Infosys Ltd., 2016-PER-00074 (May 12, 2016), also cited in Cognizant, where BALCA held that it was not fundamentally fair to require an employer’s advertisements and Form 9089 to disclose the possibility of relocation in absence of notice or guidance especially since the DOL had previously approved over 500 similar PERM applications by the employer. In Infosys, BALCA recognized that PERM, an attestation-based program places a heavy burden on employers to be careful in preparing their applications but also places a related burden on the CO to ensure that employers are given adequate guidance on what will be demanded of them. These decisions highlight the frustrating deficiencies in the existing PERM regulations and Form 9089. Updates to the PERM program have long been anticipated by both employers and foreign nationals who each expect to benefit from the PERM modernization. DOL officials previously commented that they expect the new regulation to be finalized and implemented before the end of President Obama’s administration in January 2017.

Cora-Ann Pestaina

BALCA SAYS ECONOMIC BENEFITS SHOULD BE LISTED IN PERM RECRUITMENT

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by Cora-Ann V. Pestaina

PERM is an exacting process. We’ve read those words over and over in various Board of Alien Labor Certification Appeals (BALCA) decisions. The Department of Labor (DOL) Certifying Officers (CO) and BALCA continually use those words to justify the most heartless denials; callously brushing aside employers’ good faith efforts in favor of citing PERM regulations to justify denials for harmless technical errors. Yet, at other times, the employer cannot rely only on the PERM regulations but must look to the purpose behind the regulations to know what to do. PERM can sometimes be more of an exhausting than an exacting process. 

As a background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.” In October 2011, I wrote a blog entitled BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS discussing BALCA’s decision in  Matter of Emma Willard School, 2010-PER-01101 (September 28, 2011). In that case, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. The employer had recruited for the position of “Spanish Instructor” and had failed to indicate in any of its advertisements that “subsidized housing” would be offered. It was so nice to see BALCA give U.S. workers credit for being intelligent enough to recognize that a tiny advertisement could not possibly list all the terms and conditions of employment and not penalize the employer for “confusing”, “deterring” or somehow “adversely affecting” the US worker. BALCA analogized the issue to the case of an employer not listing the offered wage in its advertisements. Since the choice not to list the offered wage would not lead to an assumption, on the part of the U.S. worker, that the employer is offering no wage, similarly, the employer’s choice not to list employment benefits would not lead a U.S. worker to assume that there are no benefits involved in the position. BALCA held that the employer’s recruitment did not contain terms or conditions less favorable than those offered to the alien simply because the employer did not list wages or benefits of the position.

While Emma Willard was a step in the right direction, BALCA timidly limited its decision to the facts of the case and stated that “this decision should not be construed as support for an employer never having to offer or disclose a housing benefit to US workers.” Unsurprisingly, a different BALCA panel has seized on that as reason not to follow Emma Willard.

In Matter of Needham-Betz Thoroughbreds, Inc. 2011-PER-02104 (December 31, 2014) BALCA considered what employee benefits for the position of “Farm Manager” could be considered “terms and conditions” of employment that should be included in advertisements under PERM. In that case, in response to the CO’s audit request, the employer explained that the foreign national lived at the employer’s address because the employer offers employees an option to live rent-free, onsite at the job location which is a horse farm and the foreign national took advantage of this option. The CO denied the PERM because none of the PERM recruitment or the Notice of Filing (NOF) indicated the potential for applicants to live in or on the employer’s establishment. The CO argued that the terms and conditions offered to US workers were therefore less favorable than those offered to the foreign national and that this was in violation of 20 CFR § 656.17(f)(7). 

The employer filed a request for reconsideration arguing they were not in violation of 656.17(f)(7) because that regulation does not obligate the employer to list every aspect of the offered position. The CO denied the case and forwarded it to BALCA with a Statement of Position which cited Blue Ridge Erectors, Inc., 2010-PER-00997 (July 28, 2011) which held that the option to live on Employer’s premises is a term and condition of employment that creates a more favorable job opportunity and that U.S. workers who might have responded to an ad if on-premises housing was an option were not given the opportunity to do so. The CO also distinguished the holding in Emma Willard by arguing that in Emma Willard, a “significant majority” of its boarding school teachers, including its U.S. workers, lived in employer-provided housing, whereas in the matter at hand, the employer failed to establish that housing would be equally available to U.S. applicants. The CO made sure to point out that the BALCA panel in Emma Willard limited their holding to the facts of that case. 

In response to the CO’s Statement of Position, Needham-Betz Thoroughbreds argued that the CO is not required to speculate whether recruitment efforts beyond those required by 20 CFR Part 656 might possibly have induced other U.S. workers to apply for the position.

In its decision, BALCA agreed with the CO that Emma Willard was not controlling because it is not a binding en banc decision. BALCA found Blue Ridge Erectors to be more persuasive along with Phillip Dutton Eventing, LLC, 2012-PER-00497 (Nov. 24, 2014). In Phillip Dutton, BALCA reasoned that while benefits like wages are not required to be listed in the advertisements, wages are a legal requirement of work in this country whereas no-cost, on-site housing is not. BALCA stated that no reasonable potential applicant would have assumed that no-cost, on-site housing was a benefit associated with the job opportunity and therefore, qualified U.S. workers may have been dissuaded from applying.

In response to Needham-Betz Thoroughbreds’ argument that 656.17(f)(7) regulates only what is contained in an advertisement and does not address silence about certain aspects of the job opportunity, BALCA held that such an interpretation is too narrow and inconsistent with the purpose behind the PERM program which is to ensure that there are insufficient U.S. workers who are able, willing, qualified and available for a job opportunity prior to the granting of a labor certification. BALCA held that a more consistent interpretation of 656.17(f) is to review the terms and conditions of employment in the ad and whether they are less favorable than those being offered to the foreign national. BALCA reasoned that free housing isn’t a standard benefit that can be readily assumed, so it should have been included in the advertisements.

What we have now learned at Needham-Betz Thoroughbreds’ expense is that any unusual economic benefits should be listed in PERM recruitment. While U.S. workers usually expect benefits like wages, health insurance and vacation days and these need not be listed, U.S. workers need to be informed of other benefits that might induce them to apply. But this begs the question, how do we know what could induce a U.S. worker to apply for a position? The employer in Needham-Betz Thoroughbreds argued that this could be a slippery slope! Would U.S. workers be enticed by the promise of free lunch on Wednesdays? What if a law firm offers sleeping pods so that its attorneys can work all week and never have to waste time going home? What about cheese tasting Fridays? How do we know that a U.S. worker doesn’t really, really love cheese and would be induced to apply because of it? Sure, this may be taking it too far and the DOL may indeed have a point. But, as the DOL always says, PERM is an exacting process. If an employer who conducted good faith recruitment argues that omission of its name on the Notice of Filing (NOF) did not make a difference since only its own employees saw the NOF and that the purpose behind the NOF has been met, the PERM will still be denied and the employer will be told that PERM is an exacting process.  Yet, in cases where the employer has complied with the regulation, the DOL says that the employer should look to the purpose behind the regulation.

It really can become exhausting. As PERM practitioners, we must prepare PERM applications defensively; always trying to stay one step ahead of the DOL and imagine new reasons for denial and new reasons to discount previously upheld methods. If there is anything unusual about the offered position, the employer should err on the side of caution and include it in the advertisements. This includes work from home benefits; housing benefits; travel; relocation; on call hours; week-end employment; free day care or other economic benefits; and whatever might be deemed to be different from the “usual” job benefits.

So is Emma Willard still good for anything? I think Emma Willard can still be used to show that U.S. workers are intelligent. Too often PERM denials speak of the “confused” and “adversely affected” U.S. worker when in some cases that is the same U.S. worker who supposedly potentially qualifies for a professional position requiring a minimum of a 4-year Bachelor’s degree. In those cases, one can’t help but think that if a U.S. worker cannot read and understand a simple advertisement and is so easily “deterred’, “confused” and “adversely affected” then how could he possibly be qualified for an offered professional position?  Moreover, Emma Willard may also stand for situations where the benefit is obvious, and it all depends on context. A boarding school teacher can be expected to get subsidized housing. On the other, it is unusual for farm managers to get free housing.  

What is so interesting about PERM is the same thing that can drive you crazy, if you let it. These BALCA decisions show that we can never let our guards down for a minute.