BALCA En Banc Decision Summaries
TABLE OF CONTENTSPDF Version
TABLE OF CONTENTS
ABILITY TO PAY
ACTUAL MINIMUM REQUIREMENTS/ALIEN'S QUALIFICATIONS
- Alien gained qualifying experience with the employer, general rule
- Alien's prior experience
- Similar/dissimilar positions
- Different employers/locations
- Infeasibility to train
- Alien's qualifications, generally: sufficiency of documentation
- Tailoring to the Alien's qualifications
- Tailoring the Alien's qualifications: alternative job requirements
- State licensure requirements
ALIEN OWNERSHIP AND CONTROL
- Sufficiency of employer's evidence
- Self-employment as a per se bar
- Financial interest of alien; inseparability of alien's business interests
- Familial relationship
DUE PROCESS
- Adequacy of NOF and Final Determination
- Issue or evidence raised for the first time in the Final Determination
- Issue raised in original NOF but not preserved in subsequent NOF
- Final Determination: errors by the CO in the Final Determination do not relieve failures of proof in the rebuttal where the NOF gave adequate notice of the issue
- BALCA may remand for consideration of issues not previously adjudicated
- CO is an impartial adjudicator, not an adversary of the employer
- Impossibility of completion of rebuttal within 45 day period
- Undisclosed evidence
- BALCA review limited to grounds cited by the CO
EMPLOYMENT
- Sufficiency of documentation
- Individual as employer
- Subcontractor relationship, transfer of ownership
- Full-time - sufficient duties to keep worker occupied during the day
- Full-time v. seasonal and temporary work - sufficient workto keep work occupied for full calendar year
EVIDENCE
- Burden of proof
- Definition of documentation
- Hearsay
- Weighing of evidence: party status is not, in itself valid basisfor evaluation of evidence
- Translation: ease of seeking
- Technical Assistance Guide (TAG)
- Statements of counsel as evidence
- Authority of CO to go outside record supplied by the employer
- Statements made under penalty of perjury
- Scope of CO's authority to request information
JOB TITLE
- Determining the correct job title
- CO's suspicion that the job was misclassified and is not a bona fide job opportunity
GOOD FAITH EFFORTS TO RECRUIT
General principles
Evidence
- Sufficiency of evidence: telephone billing records
- Sufficiency of evidence: documentation found sufficient
- Sufficiency of evidence: documentation found insufficient
- Evidence: contemporaneous evidence, probative value of
- Evidence: responses to recruitment, probative value of
- Relevancy of pre-application recruitment
Particular actions and issues
- Alien involvement in interview
- Calling only one of several telephone numbers
- Discouraging U.S. applicants
- Diversion of U.S. applicant
- Misunderstanding about location or date of interview
- Placing burden on applicants to contact employer
- Post-NOF contact of applicants: whether lack of interest at that time cures initial bad faith recruitment
- Speaking or leaving a message with an applicant's family member
- Timeliness of contact
- Travel expenses
Additional recruitment
- Further recruitment: authority of CO to require: CO's obligation to explain why alternative publication is required
- Further recruitment: authority of CO to require union recruitment
MISCELLANEOUS
- Exceptional ability in the performing arts: relevant population for comparison
- Special handing cases: College or university teacher: alien only prospective candidate for degree
- Special handing cases: College or university teacher: DOL regulations do not include elementary or secondary school teachers
- Prior recruitment efforts: sufficiency of documentation
- Schedule B Waivers
- Professional responsibility: maintaining willful ignorance about details of application
PREVAILING WAGE
General principles
- Employer's burden of proof
- CO's responsibility to explain determinations and to provide notice of burden of proof
- Equitable considerations
- Fringe Benefits
- Sufficiency of CO's survey: true arithmetic mean
- Posture of case if challenge fails
Similarly employed
- Similarly employed: nature of employer's business: charitable organizations
- Similarly employed: Federal pay schedule
- Similarly employed: nature of employers being compared historically black colleges
- Similarly employed: sufficiency of employer's survey: area of intended employment
- Similarly employed: sufficiency of employer's survey: limitation to like employers
DBA and SCA
PROCEDURE
- Precedent: Pre-BALCA Decisions
- Request for BALCA review, failure to state grounds
- Request for BALCA review, timeliness
- Request for BALCA review, standing of the alien
- Request for BALCA review, request for extension of time
- Request for BALCA review, motion for reconsideration is not a request for Board review
- En Banc Procedure
REBUTTAL
- Employer must perfect record sufficient to grant certification Page at rebuttal stage
- Timeliness - discretion of CO to refuse to consider untimely rebuttal
- Timeliness - sufficiency of notice of due date
- Timeliness - equitable tolling
- Offer to readvertise if rebuttal not accepted
RECONSIDERATION BY BALCA
- Authority to reconsider
- Standard for determination of whether to reconsider
- Denial where motion merely reargues issues
- Evidence or argument not previously presented
- Time period for filing
- Standing of alien
RECONSIDERATION BY THE CO
REJECTION OF U.S. WORKERS
General principles
- General principles
- Burden of proof
- Sufficiency of evidence
- "As qualified" standard
- CO's obligation to state why employer's rejection of a U.S. worker was unlawful and to raise the issue timely
- U.S. applicant who fails to meet the employer's unchallenged job requirement may be rejected
- U.S. applicant who meets the employer's job requirements may not be rejected as unqualified
- U.S. applicant whose resume indicates a reasonable prospect that he or she is qualified: employer must investigate further
Particular grounds
- Availability of U.S. worker
- Currency of U.S. applicant's knowledge
- "Fortuitous cure" cases [contacting applicants after the NOF]
- Lack of commitment of U.S. applicant to stay in the job
- Lack of experience in job duty
- Overqualified U.S. applicant
- Relationship to competitor
- Salary offer: job must actually be offered
- Subjective grounds for rejection
- Tests and questionnaires
- Unstated requirement
- Verification of employment
SCOPE OF BALCA REVIEW
- General review authority
- Limitation to evidence and argument presented before the CO
- Evidence submitted with a motion for reconsideration
- Issues raised and preserved by the CO
- Deference to credibility findings of panel
- Lack of authority to rule on validity of the regulations
- Review of SCA wage determinations
UNDULY RESTRICTIVE JOB REQUIREMENTS/BUSINESS NECESSITY
Unduly restrictive job requirements :
- Regulation's requirements are conjunctive
- When CO may raise issue of unduly restrictive job requirements
- Job duties as requirements
Business necessity
- Business necessity: general standard: Information Industries test
- Business necessity: cooking specializations
- Business necessity: combination of duties
- Business necessity: experience and educational requirements
- Business necessity: foreign language requirements
- Business necessity: grade point average
- Business necessity: live-in and spilt-shift requirements
- Business necessity: nonstandard work hours
- Business necessity: proficiency/familiarity with employer's equipment, systems, software, etc.
- Business necessity: union membership
Rebuttal