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Is Your PERM Travel Requirement Conjunctive Or Disjunctive?

In a recent case, a BALCA panel reviewed an IT case involving

the issue of advertising for multiple, complex job descriptions and

requirements – so complex that the Board found it violates

the regulations. (Opensoft, Inc., 2013-PER-867 (BALCA, August

22, 2017).

The technical language used by the employer requires

concentration to understand the nuances of the court’s

decision.

The Certifying Officer denied the application because the

advertisements included the phrase, “Trav. & reloc. may be

reqd.,” although the ETA Form 9089 did not include relocation

as a job requirement. This violates the regulation 20 CFR

656.17(f)(6) and 656.17(f)(7) because the language on the Form does

not match the language in the ads. This much is black letter law in

PERM applications.

The employer argued on reconsideration that based on a previous

decision, Microsoft Corp., 2011-PER-324 (Feb. 29, 2012),

the ads were placed to fill multiple positions, and not all the

positions it advertised for required relocation. The employer

asserted that “based on the language and context of its

advertisements, applicants would understand that there are some

positions that require…. relocation and some positions require

[n]one because of the disjunctive language used by the employer to

define multiple positions in the ads.”

The Board disagreed citing the “chilling effect on

potential applicants” since they could reasonably assume that

travel and relocation might apply to any or all the listed

jobs.

No legal brief or position was filed with the court by the

Employer or by the DOL.

The Board reviewed the case and noted that the Microsoft ruling

applied only where employers use the specific, narrowly defined

language which was consistent with the FAQ’s and guidance which

had been discussed in a Stakeholder Meeting, i.e., “some

positions require travel,” would be acceptable, and that each

case is fact-specific, requiring separate inquiries as to whether

applicants could have been misled into thinking that travel might

be required for all the jobs listed. Many BALCA decisions were

cited, which, unlike the Microsoft case, had ruled against the

Employer because of perceived ambiguities about which job offers

had travel requirements.

The Board noted that Microsoft involved applications

with different educational levels either with a Bachelor’s

degree or a Master’s degree which demonstrated to job seekers

that the positions ranged from entry to senior level.

Neither of the decisions, Microsoft, or the current

one, are en banc and therefore lack any semblance of

precedential value, however, it is important to note that except

for Microsoft, all the decisions cited by the Board are

held against the employer.

The decision contains many subtleties and distinctions which

stakeholders should read very carefully to understand where to draw

the fine line for advertisements including multiple jobs which may

or may not require travel or relocation. Whether conjunctive or

disjunctive, employers need to use the recommended language that

‘some positions require travel’ and separate the positions

and their requirements more clearly in the ads.

In 2010, I blogged on this topic in a slightly broader context,

Is PERM Experience, Education, and Training Conjunctive or

Disjunctive? See http://blogs.ilw.com/entry.php?6431-Is-PERM-Experience-Education-and-Training-Conjunctive-or-Disjunctive&bt=46856.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.