BALCA En Banc Decision Summaries
GOOD FAITH EFFORTS TO RECRUIT

General principles

Evidence

Particular actions and issues

Additional recruitment

NOTICE : These BALCA en decision summaries were created solely to assist BALCA staff in researching BALCA caselaw. The summaries are not part of the opinions and in no way constitute the official opinion of BALCA, the Office of Administrative Law Judges or the Department of Labor on any subject. The summaries should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. They are intended simply as a research tool, and are not intended as final legal authority and should not be cited or relied upon as such.

Sufficiency of efforts: documentation must be of reasonable efforts to contact U.S. applicants rather than of actual contact: bare assertion without supporting reasoning or evidence is generally insufficient

Good faith efforts to recruit: sufficiency of efforts: standard is reasonable efforts to contact U.S. applicants rather than proof of actual contact; certified mail, return receipt requested cannot be required by the CO, but may be beneficial for employers to document their reasonable efforts: An employer must be given an opportunity to prove that its overall recruitment efforts were in good faith, even if it cannot produce certified mail return receipts to document its contacts with U.S. applicants. Moreover, a CO may not summarily discard an employer's assertions about what efforts were made to contact applicants, although a bare assertion without supporting reasoning or evidence is generally insufficient to carry an employer's burden of proof. Although a CO may not require use of certified mail, an employer who fails to do so runs the risk of not being able to prove its good faith efforts at contact and recruitment of U.S. workers. M.N. AUTO ELECTRIC CORP. , 2000-INA-165 (Aug. 8, 2001) (en banc)

Sufficiency of evidence: telephone billing records

Good faith efforts to recruit: sufficiency of evidence: availability of local phone records: if an employer asserts that local phone records are not available, it should at the minimum be prepared to document that it asked the phone company for such records in a timely fashion. M.N. AUTO ELECTRIC CORP. , 2000-INA-165 (Aug. 8, 2001) (en banc)

Good faith efforts to recruit: sufficiency of evidence: where the NOF had required Employer to submit "convincing documentation" of its reasons for rejecting U.S. applicants but had not specifically mentioned telephone bills, the CO should have issued a second NOF if he wished to require submission of the telephone bills rather than accept Employer's written initial reports of contacts, together with written notes of telephone calls. DICEON ELECTRONICS, INC., 1988-INA-253 (Apr. 18, 1989) (en banc)

Sufficiency of evidence: documentation found sufficient

Good faith efforts to recruit: itemized telephone bills, "Interview Sheets" summarizing the telephone calls with applicants, and follow-up letters, supported a finding of good faith recruitment efforts. YEDICO INTERNATIONAL, INC. , 1987-INA-740 (Sept. 30, 1988) (en banc)

Good faith efforts to recruit: sufficiency of documentation: CO erred in denying certification based on fact that certified mail receipt was not stamped where Employer's rebuttal included the signed declarations of Employer's executive chef and general manager and the CO ignored these declarations in the Final Determination. BEL AIR COUNTRY CLUB , 1988-INA-223 (Dec. 23, 1988) (en banc)

Rejection of U.S. workers: sufficiency of documentation: lawful rejection established where during a telephone conversation with the Employer, the applicant declined to come in for an interview and indicated a lack of interest in the job, and employer substantiated its position, with notes of the telephone call and a copy of a letter to the applicant confirming that he was not interested in the job. The CO presented no evidence to the contrary. KOMFORT INDUSTRIES, INC. , 1988-INA-402 (May 4, 1989) (en banc)

Sufficiency of evidence: documentation found insufficient

Rejection of U.S. workers: CO's denial of labor certification affirmed where rebuttal consisted solely of a one page affidavit from employer's President stating that several applicants declined by telephone to be interviewed and that the remaining applicants were contacted but never responded and did not appear for an interview. This information was already in the record and Employer made no attempt to recontact several applicants as directed by the NOF until after the Final Determination. MEDICAL DESIGNS, INC. , 1988-INA-159 (Dec. 19, 1988) (en banc)

Rejection of U.S. workers: failure of employer to substantiate its efforts to contact applicants where US workers submitted questionnaires indicating that they were never contacted. CARRIAGE HOUSE REALTORS , 1987-INA-739 (Apr. 5, 1989) (en banc)

Good faith efforts to recruit: sufficiency of efforts: Employer's recruitment report was inadequate where it failed to indicate when or how many times Employer attempted to contact an applicant by telephone and failed to indicate whether the attempted contact or contacts were to his place of business or his home, or with whom the message was left, or what the substance of the message was. It also failed to show that Employer attempted alternative means of communication, such as a letter. YARON DEVELOPMENT CO., INC. , 1989-INA-178 (Apr. 19, 1991) (en banc)

Evidence: contemporaneous evidence, probative value of

Good faith efforts to recruit: evidence: contemporaneous evidence of contact of US workers is more probative than narrative evidence prepared months later. YEDICO INTERNATIONAL, INC. , 1987-INA-740 (Sept. 30, 1988) (en banc)

Evidence: responses to recruitment, probative value of

Good faith efforts to recruit: the fact that there were some responses to the application and advertisement does not indicate that problems in recruitment, if any, were insubstantial. O'Malley Glass & Millwork Co., 1988-INA-49 (March 13, 1989). MAPLE DERBY, INC. , 1989-INA-185 (May 15, 1991) (en banc)

Relevancy of pre-application recruitment

Good faith efforts to recruit: whether CO's finding that US applicants were unlawfully rejected in a pre-application recruitment can support a denial of labor certification: because the record was unclear, the Board remanded for further proceedings. UNIVERSITY OF OKLAHOMA - HEALTH SCIENCES CENTER , 1988-INA-158 (Dec. 29, 1988) (en banc)

Alien involvement in interview

Good faith efforts to recruit: alien involvement in interview of US applicants is fatal defect in application: Employer violated section 656.20(b)(3) by involving the alien in the interviewing or consideration of U.S. applicants for the position offered the alien. " an alien's participation in the interviewing and consideration of U.S. workers per se taints the labor certification process. See Eastern Trading Co., Inc., 88-INA-144 (August 4, 1988) .... In cases where the alien has been involved in the interviewing or consideration of U.S. applicants, as he has here, we will not determine whether, despite this taint, no qualified and available U.S. worker applied." MASTER VIDEO PRODUCTIONS, INC. , 1988-INA-419 (Apr. 18, 1989) (en banc)

Calling only one of several telephone numbers

Good faith efforts to recruit: telephone contact: employer made several attempts to contact the applicant at his home telephone, and not until after the NOF did it contact the applicant at his work number: Employer argued that it did not call the work number due to sensitivity: the Board rejected this argument noting that since the applicant was presently employed it was likely that he would be at work when telephoned and that employer could have written the applicant. BRUCE A. FJELD , 1988-INA-333 (May 26, 1989) (en banc)

Discouraging U.S. applicants

Good faith efforts to recruit/Rejection of U.S. workers: an Employer who by its actions had made it sufficiently difficult for the applicants to obtain an interview so as to discourage them from pursuing the job opportunity has not shown a good faith effort to recruit U.S. workers, and has not established lawful, job-related reasons for rejecting U.S. workers. BUDGET IRON WORK , 1988-INA-393 (Mar. 21, 1989) (en banc)

Diversion of U.S. applicant

Good faith efforts to recruit: diversion of U.S. applicant: "fact that a position was created after a qualified U.S. worker applied for the job for which certification is sought suggests that it was created in a way to keep the original position open to the alien and to circumvent 20 C.F.R. 656.20." AMGER CORPORATION , 1987-INA-545 (Oct. 15, 1987) (en banc)

Misunderstanding about location or date of interview

Good faith efforts to recruit: interview at the wrong location based on employer's poor coordination. SUNILAND MUSIC SHOPPES , 1988-INA-93 (Mar. 20, 1989) (en banc)

Good faith efforts to recruit: misunderstanding about interview date: where the Board concluded that there was no evidence that the employer purposely rescheduled an interview for Saturday (a day when the facility was closed) but that there was a misunderstanding about the time for the interview, the matter was remanded for an interview of the applicant, or, if the applicant was no longer available, for readvertising. BOLTON ELECTRIC, INC. , 1988-INA-192 (Dec. 22, 1988) (en banc)

Placing burden on applicants to contact employer

Good faith efforts to recruit: unreasonable delay in contact of applicants: improperly placing burden on applicants instead of actively recruiting. VIVA OF CALIFORNIA , 1987-INA-583 (Nov. 20, 1987) (en banc)

Post-NOF contact of applicants: whether lack of interest at that time cures initial bad faith recruitment

Good faith efforts to recruit: fortuitous cure: "an applicant's expression of disinterest or lack of availability upon recontact does not cure an initial improper rejection. Arcadia Enterprises, Inc., 87-INA-692 (Feb. 29, 1988)." The Board declined, under the facts of the case, to decide whether a "fortuitious cure" (i.e., whether an employer's failure to contact an apparently qualified applicant timely can be fortuitously cured by later establishing that the applicant would not have taken the job even if it had been timely offered) would be recognized by the Board. YARON DEVELOPMENT CO., INC. , 1989-INA-178 (Apr. 19, 1991) (en banc)

Good faith efforts to recruit: fortuitous cure: even though the applicant was no longer interested in the job offered when employer contacted him post-NOF, this does not cure the Employer's failure to take reasonable steps to contact him during the original recruitment period. See e.g., Dove Homes, 87-INA-680 (May 25, 1988) (en banc); Arcadia Enterprises, Inc., 87-INA-692 (Feb. 29, 1988). BRUCE A. FJELD , 1988-INA-333 (May 26, 1989) (en banc)

Speaking or leaving a message with an applicant's family member

Good faith efforts to recruit: CO stated in recruitment report that he left a message with the applicant's wife: applicant later asserted in questionnaire that he was never contacted: rebuttal that post-NOF letter to applicant was not answered and therefore applicant was no longer interested was not responsive to the NOF: moreover, leaving message with a spouse does not itself relieve employer's burden to attempt to contact applicant directly: moreover, the post-NOF letter to the applicant could not cure the initial rejection on the basis that the applicant is no longer interested. DOVE HOMES, INC. , 1987-INA-680 (May 25, 1988) (en banc)

Good faith efforts to recruit: "[A]n employer who wants to consider an applicant seriously must go further than merely speaking to the applicant's spouse by telephone. In re Dove Homes, Inc., 87-INA-680 (May 25, 1988) (en banc). SWITCH, U.S.A., INC. , 1988-INA-164 (Apr. 19, 1989) (en banc)

Good faith efforts to recruit: telephone contact: "As in Dove Homes, Inc., 87-INA-680, May 25, 1988 (en banc), it is unacceptable for an Employer to assume a U.S. applicant is not interested based on a phone conversation with another family member. The vice in such a procedure, the strong possibility of a misunderstanding or miscommunication, is evidenced by the instant case." DICEON ELECTRONICS, INC. , 1988-INA-253 (Apr. 18, 1989) (en banc)

Good faith efforts to recruit: sufficiency of efforts: where the employer only attempted to contact a US applicant at one of three possible telephone numbers and no attempt was made to contact her by mail, the employer's two messages did not constitute reasonable efforts to contact a qualified U.S. worker. In re Bruce A. Fjeld, 1988 INA 333 (May 26, 1989). BAY AREA WOMEN'S RESOURCE CENTER , 1988-INA-379 (May 26, 1989) (en banc)

Timeliness of contact

Good faith efforts to recruit: untimely contact of US applicants: employer left country for a month and failed to delegate recruitment responsibilities in the interim. LEONARDO'S , 1987-INA-581 (Nov. 20, 1987) (en banc)

Good faith efforts to recruit: delay in contact of applicants: the Board declined to adopt the CO's finding of unacceptable delay where the delay had been occasioned in large part because of the CO's direction to readvertise in a national journal, and the delay had been for inevitable, a period of 16-20 days between receipt of the applicants' resumes and Employer's response to these resumes. LEE & CHIU DESIGN GROUP , 1988-INA-328 (Dec. 20, 1988) (en banc)

Good faith efforts to recruit: "In legal parlance, an employer who makes timely contact is acting in good faith. However, it is important not to become lost in "good faith" jargon, which easily disintegrates into an analysis of the intent underlying an

employer's delay. The proper focus is not on the employer's intent, but on the probable effect on U.S. applicants of the passage of time." Note strong dissents that intent does have a role in assessing whether to invoke equitable remedies. LOMA LINDA FOODS, INC. , 1989-INA-289 (Nov. 26, 1991) (en banc)

Good faith efforts to recruit: timeliness: this decision contains an extended discussion of the principles underlying the requirement that an employer must contact potentially qualified U.S. applicants as soon as possible after it receives resumes or applications, so that the applicants will know that the job is clearly open to them. LOMA LINDA FOODS, INC. , 1989-INA-289 (Nov. 26, 1991) (en banc)

Good faith efforts to recruit: timeliness: equitable relief for innocent employers who fail to recruit timely: the Board permits two equitable remedies: "First, an employer who provides a reasonable justification for its delay is given a second chance to recruit; the case is remanded. Second, an employer who provides a legitimate excuse, showing that it did not contribute to the delay, is granted certification; the C.O.'s denial is reversed." LOMA LINDA FOODS, INC. , 1989-INA-289 (Nov. 26, 1991) (en banc)

Good faith efforts to recruit: delay: "an employer remains under the affirmative duty to commence review and make all reasonable attempts to contact applicants as soon as possible": the Board rejected Employer's argument that all that was necessary was that the contacts be completed within the 45 days allotted to complete review and evaluation of the candidates and report the results to the local job service: "A delay is likely to result in workers becoming disinterested in the opportunity. A delay without cause is also an indication of an employer's lack of a good faith effort to evaluate U.S. applicants. It is irrelevant that the record in this case does not show that the delay actually caused or contributed to an apparently qualified applicant's disinterest or unavailability. An employer's intent in creating an unjustified delay is equally irrelevant." CREATIVE CABINET & STORE FIXTURE, CO. , 1989-INA-181 (Jan. 24, 1990) (en banc)

Travel expenses

Good faith efforts to recruit: although not going so far as to hold that an employer must pay for travel expenses of applicants to attend a personal interview, the Board affirmed the denial of labor certification where " employer made no effort to try to reduce the impact of this requirement on the pool of job applicants": for example, employer could have weeded out unqualified applicants and invited the best applicants for interviews. LIN & ASSOCIATES, INC. , 1988-INA-7 (Apr. 14, 1989) (en banc)

Good faith efforts to recruit: travel expenses of applicants: "Where an employer is recruiting for a professional position, not limited to the local area, and flatly refuses to pay expenses or interview over the phone, rejection of U.S. workers for failure to agree to an interview at the job site is unlawful; an employer has the affirmative obligation to mitigate the financial hardship involved in some way." AMERICAN EXPORT TRADING CO. , 1988-INA-220 (June 15, 1990) (en banc)

Good faith efforts to recruit: travel expenses: "That an applicant refuses to pay his or her own expenses for the purpose of being interviewed cannot be the bases for rejecting an apparently qualified applicant. * * * Accordingly, where more than local recruitment efforts are required, yielding referrals of apparently qualified U.S. applicants, the employer must make efforts, either through telephone interviews of through personal interviews at the employer's expense, to determine the qualifications of the U.S. applicants, and to specify lawful, job-related reasons for rejecting each U.S. applicant." HIPOINT DEVELOPMENT, INC. , 1988-INA-340 (May 31, 1989) (en banc)

Good faith efforts to recruit/Rejection of U.S. workers: travel expenses: where Employer rejected five applicants solely on the basis of failing to appear for an interview at their own expense, but the employer made no effort to determine the qualifications of the applicants, either through telephone interviews or by paying the applicants' traveling expenses, denial of labor certification was affirmed. WARMTEX ENTERPRISES , 1988-INA-403 (June 28, 1989) (panel) [see Warmtex Enterprises, 1988-INA-403 (Oct. 31, 1989) (en banc) (Order Denying Petition for En Banc Review),affirmed, Warmtex Enterprises v. Martin, 953 F.2d 1133 (9th Cir. 1992)]

Further recruitment: authority of CO to require: CO's obligation to explain why alternative publication is required

Good faith efforts to recruit: CO is authorized to require further recruitment if he or she finds that such recruitment could produce additional qualified job applicants; however, that authority is not unbridled. If CO directs advertising the job in a different publication, he or she should explain why the publication used by Employer failed to provide an adequate test of the market, and why advertising in the other publication would significantly add to that test...Employer used Electronic News for software engineer positions; CO directed Computerworld. INTEL CORPORATION , 1987-INA-570 and 571 (Dec. 11, 1987) (en banc)

Good faith efforts to recruit: "Where the CO requires advertising different from or in addition to that which the Employer has run, the CO must provide a reasonable explanation of why the employer's advertising and recruitment efforts were inadequate and show how the additional recruitment efforts would add to the test of the labor market. See Intel Corp., 87-INA-570, 571 (December 11, 1987) (en banc); Pater Noster High School, 88-INA-131 (Oct. 17, 1988)." ALPINE ELECTRONICS OF AMERICA, INC. , 1988-INA-107 (Mar. 14, 1989) (en banc)

Other efforts to locate and employ U.S. workers: the CO has the ultimate responsibility for determining the adequacy of the Employer's recruitment efforts and whether additional potential sources of U.S. workers may be available to fill the job. Section 656.21(b)(4) expressly authorizes the CO to require additional recruitment through colleges and universities. ESSEX COUNTY COLLEGE , 1988-INA-147 (Feb. 1, 1989) (en banc)

Good faith efforts to recruit: appropriate publication for advertisement: the employer advertised the position of chef in a national journal following the recommendation of the local job service but the CO ordered readvertisement in a local newspaper, but employer refused arguing that it was entitled to rely on the local job service's recommendation: the Board affirmed the CO's denial of labor certification: "'[T]he Certifying Officer is authorized to require further recruitment if he or she finds that such recruitment could produce additional qualified job applicants.' In re Intel Corp., 87 INA 570 (Dec. 11, 1987). However, 'the Certifying Officer should not require additional advertising or recruiting without offering a reasonable explanation of why the employer's advertisements and/or recruitment were inadequate and how the additional recruitment recommended by the Certifying Officer would be appropriate.' Id." In the instant case, the CO had explained that local recruitment would be more likely to produce applicants. PEKING GOURMET , 1988-INA-323 (May 11, 1989) (en banc)

Good faith efforts to recruit: additional recruitment: "[A] CO, under Section 656.24(b)(2)(i), may require an employer to conduct additional recruitment if he offers a reasonable explanation of why employer's recruitment was inadequate and how the additional recruitment efforts he is requiring would add to the test of the job market." Where, however, the CO, without any explanation required the employer to conduct a specific individual that the employer had never heard of, the Board held that the employer was justified in not carrying out such recruitment. NATIONAL INSTITUTE FOR PETROLEUM AND ENERGY RESEARCH , 1988-INA-535 (Mar. 17, 1989) (en banc)

Further recruitment: authority of CO to require union recruitment

Good faith efforts to recruit: CO's authority to require additional recruitment: union referrals to non-union employer: Where the CO did not allege that unions were customarily used as a recruitment source in the area or industry, such that the employer was required to contact unions for referrals pursuant to 20 C.F.R. § 656.21(b)(5), it is nonetheless reasonable for the CO to require recruitment through the union pursuant to the provisions of 20 C.F.R. § 656.24(b)(2)(i). In David Howard, the CO had documented that the ILGWU was a source of U.S. workers in the Employer's industry which had requested to refer workers to the non-union Employer for non-union jobs. DAVID HOWARD OF CALIFORNIA , 1990-INA-241 (May 12, 1992) (en banc) [see also DAVID HOWARD OF CALIFORNIA , 1990-INA-241 (Sept. 21, 1992) (en banc, amendment) (correction to foonote 4)]