||2016-06-26 19:36:02, 조회 : 297, 추천 : 74
DEFECTS IN RECRUITMENT DOCUMENTATION
Documenting Recruitment Efforts
In the event of an audit,
1) employers must submit sufficient documentation
a) of professional recruitment efforts
As noted above,
employers are not required
a) to submit documentation
i) of SWA job orders
ii) in their audit responses, and
1) providing such documentation can facilitate denial
2) if any deficiencies exist
a) in the job order.
a) posted on an employer’s website,
a) of posting
1) may include
a) dated copies of pages
i) from its website or
b) sworn affidavits
i) evidencing the placement
A) of the website ad.
(BALCA Jan. 13, 2015) (finding that a NOF that lists the name of the business owner or authorized representative is insufficient.).
12 Matter of Academy Awning, 2012-PER-00462 (BALCA Nov. 26, 2014) (finding that without the required language, employees received no notice of the employer’s PERM filing and thus the purpose of the NOF
requirement was frustrated).
13 20 CFR 656.17(e)(1)(i)(B)(1).
14 PERM FAQs are available at www.foreignlaborcert.doleta.gov/faqsanswers.cfm.
15 Matter of Symyx Solutions, 2012-PER-00463 (BALCA Nov. 26, 2014) (upholding a PERM denial where the employer listed the Bay Area News Group (Group) as the newspaper of general circulation in its ETA 9089, where
the ads actually ran in the San Jose Mercury News (SJMN), which is owned by the Group).
16 Matter of Delta Search Labs, 2011-PER-02871 (April 24, 2014), published on AILA InfoNet at Doc. No.
The mere submission of
a) undated printouts
i) of a website ad,17
b) a copy of
i) the advertised text
A) with a note
I) describing the posting,18 or
c) an email
i) referencing the job ad posting
1) are not considered sufficient evidence. 19
To document the use
a) of an employee referral program
b) as an additional recruitment step,
1) employers must ensure that
a) the documentation details the incentives
i) offered to employees.20
For newspaper advertisements,
a) of publication
1) must be clearly visible
a) on the tear sheets
i) submitted with an audit response.21
in addition to documentation
a) verifying recruitment steps,
an audit response must include a detailed and signed recruitment report
a) that describes the recruitment steps undertaken.22
Documenting Infeasibility to Train and Lawful Reasons for Disqualification
DOL reinstated its practice
a) of requesting
i) employers demonstrate that
A) rejected applicants’ skills cannot be attained
I) within a reasonable period
(a) of on the job training
b) in all audits.
Employers have the burden, in essence,
a) to prove a negative
i) in response to an audit—
ii) i.e., why it is infeasible
A) to train someone on the job.
This may be demonstrated
a) through written assertions
A) are reasonably specific,
B) indicate their sources or bases, and
C) demonstrate time-sensitivity.
Practitioners should counsel employers
a) to document infeasibility
i) to train
ii) with great specificity.23
practitioners reported receiving denials
1) in some cases where
a) Kellogg language
i) (indicating that
A) the employer would accept “any suitable combination
I) of education, training, or experience
II) to qualify for the position”)
was included and
i) whose resumes indicated
(a) significant experience and
(b) the requisite education
II) but were missing required skills
i) without interview.
a) a duty
i) to inquire further
(a) into a candidate’s qualifications
is more likely to arise
b) where Kellogg language is present.
a) whether to reject U.S. applicants,
1) employers should base their decisions
a) on substantive, lawful, job related criteria
i) listed in the ETA 9089.
An employer’s bare statement
a) that the U.S. applicant is not qualified
1) would not pass muster
a) with DOL.24
17 Matter of ERP Corp., 2012-PER-00493 (BALCA Nov. 26, 2014) (finding employer failed to submit sufficient documentation of a website ad where in its audit response, it submitted an undated printout of the website ad, with no further documentation of the date the ad was posted).
18 Matter of IBM Corporation, 2012-PER-00251 (BALCA Aug. 25, 2014) (affirming CO’s denial where employer failed to provide dated copies of pages from its website or any sworn affidavits of such a posting evidencing the placement of the website ad, but rather submitted the advertised text with a note stating that “a copy of this notice
was posted on IBM.com,” which was signed by a member of the company’s Immigration Operations department).
19 Matter of Bencor Corporation of America Foundation, 2012-PER-00415 (BALCA Nov. 26, 2014) (affirming
PERM denial, holding that an email from one of the employer’s employees to another, asking how long a job advertisement needed to be posted on the employer’s website, was insufficient to document the dates and duration of the website ad).
20 Matter of Softpros, Inc., 2012-PER-00935 (BALCA Jan. 8, 2015); see also Matter of Summit Helicopters, Inc.,
2011-PER-02300 (BALCA Jan. 13, 2015).
21 Matter of RN Middleton Residential Care Home, 2012-PER-00500 (BALCA Nov. 24, 2014) (affirming denial where the employer provided copies of its newspaper advertisements, but one ad had its date of publication cut off).
22 Simply Soup Ltd., 2012-PER-940 (Jan. 13, 2015) (en banc) (finding that recruitment report must describe the recruitment steps undertaken, even if the recruitment steps could be easily verified by review of the documentary
23 Matter of Kentrox, 2012-PER-0038 (May 22, 2014), published on AILA InfoNet at Doc. No. 1405274.
24 Matter of Federal Home Loan Mortgage Corp., 2011-PER-02902 (February 10, 2014), published on AILA InfoNet at Doc. No. 14021144 (holding that although an employer may not reject a U.S. applicant for reasons other