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BALCA Determines that Online Header in Advertisement Was Not Controlled by Employer

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The Board of Alien Labor Certification Appeals (“BALCA”) recently considered Matter of SDG Post Oak, LP. In this case, the employer sponsored the position of a “Line Cook.” The case was selected for supervised recruitment and the Department of Labor (“DOL”) instructed the employer to post the position through the Beaumont Enterprise’s Hotjobs / monster.com site. In drafting the labor certification, the employer stated that the minimum requirements were six months of experience as a line cook or six months of related experience in restaurant food preparation. However, in the caption above the text advertisement on the monster.com site, the experience requirements were listed as one to two years. The DOL denied the case on the basis that the advertisement failed to list the employer’s true minimum requirements. In response, the employer submitted documentation from the Beaumont Enterprise that “it selected the advertisement header without the employer’s or legal counsel’s knowledge and consent.” The employer stated that any candidate could have read the full description of the position provided below the advertisement header to learn the requirements of the position. In reviewing the case, BALCA determined that the employer had followed the recruitment instructions provided by the DOL, and the “header added to the advertisement by the publisher was not part of that advertisement.” Furthermore, BALCA stated that “the possibility that the header materially impacted the supervised recruitment results is unlikely.” Consequently, the denial was overturned. This case establishes that employers should not receive denials in cases where the advertisement publisher inserted information into a header or other drop box. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/

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