What kind of effort is an employer required to make in its attempts to contact U.S. applicants in the course of a recruitment effort? In Matter of Technivate, Inc., 2008-INA-00065 (BALCA, August 27, 2008), the Board of Alien Labor Certification Appeals (BALCA) upheld the Certifying Officer’s findings that an employer did not make a good faith effort to recruit U.S. applicants when it failed to send recruitment letters to two candidates who could not be reached by phone or e-mail. While the case was decided under the pre-PERM regulations, it still serves as a useful illustration of the fact that the procedures an employer normally follows in its recruitment efforts may insufficient to satisfy the demands of the labor certification process.
The employer in Technivate received five referrals from a regional job center for the position of Heavy Equipment Operator, a job paying $21.89 an hour with no experience required. The employer left a phone message for one of the candidates, but the call was not returned. An e-mail was sent to a second candidate, but it was returned due to an inoperable e-mail address. The employer did not make any further efforts to reach either candidate, inferring that an applicant who does not even bother to return a call for a well-paying job with no experience required must not be interested in the position. The certifying officer took the position that, while an employer might be justified in making such assumptions in the course of a standard job recruitment, the efforts made in this case to reach the applicants were not sufficient for the purposes of obtaining a labor certification.
The Board agreed with the assessment of the certifying officer, finding that the employer had not made a good faith effort to contact the two candidates in question. “Clearly,” the Board found, “sending a recruitment letter to the two applicants who could not be reached by telephone would not be an undue burden.” While not deciding exactly what type of communication would have met the standard, the Board found that the employer’s efforts here were clearly insufficient, as the record contained no evidence of any attempted contact after the voicemail and e-mail went unreturned. The Board held that, on these facts, the employer had made only a “minimalist effort” at recruitment, and that the certifying officer’s denial of the labor certification should be upheld.
This case, while not decided under the current regulations, should serve as a cautionary tale for employers pursuing a labor certification. No matter what a company has done in the past to recruit candidates, one should never assume that such efforts will be sufficient for the purposes of labor certification. A recruitment plan must be created with the labor certification process in mind, and it must be strictly followed from start to finish in order to have any chance at ultimate success. Any candidate identified for the job opening must be seriously considered, and all efforts to reach such candidates must be well documented. By preparing—and scrupulously following—a comprehensive recruitment plan in conjunction with competent legal counsel, employers can avoid the fatal mistakes made by the employer in Technivate.
