BALCA Case No.: 2011-PER-02104
ETA Case No.: A-08297-98741
In the Matter of:
NEEDHAM-BETZ THOROUGHBREDS, INC.,
BACKGROUND
On
November 19, 2008, the Certifying Officer (“CO”) accepted for filing the
Employer’s Application for Permanent Employment Certification for the position
of “Farm Manager.” (AF 58, 65).① On November 25, 2009, the CO sent the Employer
an Audit Notification requesting the Employer provide certain information in
accordance with 20 C.F.R. § 656.20. (AF 53-56). On December 23, 2009, the
Employer responded to the Audit. (AF 13-52). In response to the CO’s audit
request, the Employer explained the foreign worker lives at the Employer’s
address because the Employer offers employees an option to live rent-free,
on-site at the job location which is a horse farm, and the foreign worker took
advantage of the option. (AF 14-15).
On December 16, 2010, the CO denied the application because the Employer’s
Notice of Filing (“NOF”), Job Order, mandatory newspaper advertisements, and
additional recruitment steps did not indicate the option for potential
applicants to live in or on the employer’s establishment and therefore offered
terms and conditions of employment that were less favorable than those offered
to the alien in violation of 20 C.F.R. § 656.17(f)(7). (AF 10-12).
On January 14, 2011, the Employer filed a request for reconsideration. (AF 3-9).
The Employer argued it is not required to enumerate every job duty, job
requirement and condition of employment in its advertisements, citing to the
Department of Labor’s Frequently Asked Questions. (AF 4). The Employer argued
that silence on a particular aspect of a job does not violate section
656.17(f)(7) and there is no affirmative duty to advertise all aspects of a
position. (AF 4-5).
On July 18, 2011, the CO denied reconsideration and forwarded the case to BALCA
for administrative review, and on November 4, 2011, BALCA issued a Notice of
Docketing. (AF 1-2). On November 18, 2011 , the Employer submitted a Statement
of Intent to Proceed.
The CO filed a Statement of Position on December 21, 2011 . The CO relied on
Blue Ridge Erectors, Inc., 2010-PER-00997 (July 28, 2011), which found that the
option to live on the Employer’s premise is a term and condition of employment
that creates a more favorable job
opportunity for which the labor market was not tested. CO Br. 1. The CO found
the
“convenience and cost-savings associated with employer-provided housing could
induce a U.S.
worker to apply for a position that he might not otherwise seek,” and since the
Employer did not
advertise the optional housing benefits, it did not conduct an appropriate test
of the U.S. labor
market. Id. The CO distinguished the contrary case of Emma Willard School, 2010-PER-01101
(Sept. 28, 2011), arguing in that case, the employer demonstrated that a
“significant majority” of
its boarding school teachers, including its U.S. workers, lived in
employer-provided housing,
whereas in the instant matter, the Employer failed to establish that housing
would be equally
available to U.S. applicants. Id. at 2. The CO further argued the Emma Willard
panel limited its
holding to the “precise circumstances” at issue and stated “[t]his decision
should not be construed
as support for an employer never having to offer or disclose a housing benefit
to U.S.
workers.” Id.
On January 5, 2012, the Employer responded to the CO’s Position Statement. The
Employer distinguished Blue Ridge because that panel upheld the denial of
certification under 20 C.F.R. § 656.1(a)(1), which the Employer argues does not create an adjudicatory
standard the
Employer must comply with, but simply outlines the purpose and scope of the PERM
process.
Er. Br. 1. The Employer argued it met all applicable requirements in its
recruiting, and that a CO
is not required to speculate whether recruitment efforts beyond those required
by 20 C.F.R. Part
656 might possibly have induced other U.S. workers to apply for the position.
Er. Br. 2. The
Employer presented a slippery slope argument that under the CO’s reasoning, the
Employer’s
application could potentially be denied for not including every benefit of
employment, no matter
how trivial. Id. The Employer reiterated that there is no regulatory requirement
that an employer
has an affirmative duty to advertise all beneficial aspects of a position. Id.
at 2-3.
On December 23, 2013, in response to this Panel’s Order Requiring Certification
on Mootness, the Employer certified the job identified on the PERM application is
still open and
available and the alien identified in the PERM application remains ready,
willing, and able to fill
the position.
DISCUSSION
An employer must conduct certain recruitment steps and make a good faith effort
to
recruit U.S. workers prior to filing an application for permanent alien labor
certification. 20
C.F.R. § 656.17(f)(7); ETA Final Rule, Labor Certification for the Permanent
Employment of
Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326
(Dec. 27, 2004).
Mandatory newspaper advertisements and Notices of Filing placed as part of the
recruitment
process must meet certain content requirements as outlined in 20 C.F.R. §§
656.17(f) &
656.10(d)(4). In pertinent part, the advertisements must “[n]ot contain wages or
terms and
conditions of employment that are less favorable than those offered to the
alien.” 20 C.F.R. § 656.17(f)(7).②
The Employer’s newspaper advertisements and Notice of Filing placed as part of
the
recruitment process did not mention an option to live on the Employer’s
premises, rent-free.
(See AF 39-51). The CO, in denying certification, found that the failure to
offer potential U.S.
applicants the option to live on-site resulted in a violation of section
656.17(f)(7) as the
advertisements and Notice of Filing contained terms and conditions of employment
less
favorable than those offered to the foreign worker. (AF 11 -12).
On appeal, the Employer relies on Emma Willard School, 2010-PER-01101 (Sept. 28,
2011), which held that the employer’s failure to indicate the availability of
employer-subsidized
housing in its advertisements did not violate section 656.17(f)(7). In reaching
its holding, the Emma Willard panel found that there “is no obligation for an employer to list
every term or condition
of employment and listing none does not create an automatic assumption that none
exist.” Id. at 4. We do not find Emma Willard to be controlling here—it was not
a binding enhance decision and that panel noted the “decision should not be construed as
support for an
employer never having to offer or disclose a housing benefit to the U.S.
workers.” 2010-PER-01101 at 5.
We find two other BALCA decisions to be more persuasive and they reach an
opposite
holding than Emma Willard. Blue Ridge Erectors, Inc., 2010-PER-00997 (July 28,
2011) and
Phillip Dutton Eventing, LLC, 2012-PER-00497 (Nov. 24, 2014). Phillip Dutton is
the most
recent decision addressing the inclusion of an option to live onsite in an
employer’s
advertisements. Both Phillip Dutton and Blue Ridge upheld the CO’s denials of
certification
under section 656.17(f)(7), reasoning: “The option to live on Employer’s
premises at no
additional cost is a term and condition of employment that creates a more
favorable job
opportunity for which the labor market was not tested by the Employer’s
recruitment effort” and
“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.” Phillip Dutton, 2012-PER-00497 at 4; see
also Blue Ridge,
2010-PER-00997 at 3.
In Phillip Dutton, the panel distinguished on-site housing at no additional cost
with
wages, which are not required to be included in advertisements. 2012-PER-00497
at 4. The
panel stated: “unlike on-site housing at no additional cost, wages are a legal
requirement of work
in this country. No-cost, on-site housing is not. Unlike wages, no reasonable
potential applicant
would have assumed that no-cost, on-site housing was a benefit associated with
this job
opportunity.” Id. Both Blue Ridge and Phillip Dutton concluded the Employers
failed to
establish there were insufficient able, willing, and qualified U.S. workers
available as required
by 20 C.F.R. § 656.1(a)(1).
③ Phillip Dutton, 2012-PER-00497 at 5;
Blue Ridge,
2010-PER-00997 at 3.
The Employer argues section 656.17(f)(7) only regulates what is contained in the
advertisements and does not address silence about certain aspects of the job
opportunity. We
find this regulatory interpretation to be too narrow, and inconsistent with the
purpose of the
PERM program. The purpose of the PERM regulations is to ensure there are
insufficient U.S.
workers who are able, willing, qualified, and available for a job opportunity
prior to the
Department of Labor granting labor certification to a foreign worker. 8 U.S.C. §
1182(a)(5)(A);
20 C.F.R. §§ 656.1(a) & 656.24(b)(2). Relying on Employer’s interpretation of
section
656.17(f)(7), material benefits offered as part of a position which would lead
to more U.S.
applicants applying for the position, would not be required to be placed in an
advertisement, no
matter the significance of the benefits offered to the alien.
We find a more consistent interpretation of section 656.17(f), along with the
purpose of
PERM, is to view the terms and conditions of employment in an employer’s
advertisement as a
whole and compare those terms and conditions with those offered to the alien to
determine whether
they are less favorable than those offered the alien. In this case, we find that
by not
including the benefit of free housing in its advertisements and Notice of
Filing, the Employer
offered terms and conditions of employment less favorable than those offered to
the alien, in
violation of section 656.17(f)(7).
While we acknowledge the Employer’s point that the Employment and Training
Administration’s Frequently Asked Questions (“FAQs”) indicate that not every
duty,
requirement and condition of employment needs to be included in advertisements,④
the benefits
of free housing is not a standard benefit attached to a job opportunity. Free
housing for an
employee is a huge income enhancement that is not readily assumed to be part of
an employment
opportunity, unlike the other more typical benefits such as health insurance or
vacation days. Therefore, advertising a position that includes the economic benefit of free
housing may well
have a substantial influence on potential U.S. applicants deciding whether to
apply for the
position. Accordingly, although not all benefits of employment need to be
included in an
advertisement, we find that a free housing benefit is of such paramount economic
importance, it
must be included in an advertisement, and a failure to do so results in the
advertisement
containing terms and conditions of employment that are less favorable than those
offered to the
alien.
Based on the foregoing, we affirm the CO’s denial of certification because the
Employer’s newspaper advertisements and Notice of Filing contain terms and
conditions of
employment less favorable than those offered to the alien, in violation of 20
C.F.R. § 656.17(f).
ORDER
IT IS ORDERED that the denial of labor certification in this matter is hereby AFFIRMED.