March 21, 2011
A judge for the Board of Alien Labor Certification Appeals recently ruled on an interesting case related to the burden employers face trying to prove the hardship related to training a new employee.
The case is a good one for our friends here in Columbus to take a look at, especially with regard to the intricacies related to federal code. It is yet another instance where experienced representation must be present when maneuvering the permanent labor certification (PERM) process.
In late 2006 a company sought PERM certification for a position entitled “Propagation Supervisor.” In May of 2009 an audit was requested by the Certifying Officer (CO) who requested the employer’s State Workforce Agency job order along with several other materials.
A few months later the CO informed the employer the request was not being certified “in part because the documentation submitted by the employee . . . was insufficient to demonstrate that a U.S. worker could not be trained to qualify for the position.”
In September of 2009 the employer’s representative filed a motion for the application to be reconsidered. The argument was that, among other factors, the growth of the business and illness suffered by the employer prevented the employer from training a U.S. worker for the position.
The CO denied this appeal in January of 2010 and forwarded it to BALCA. A brief prepared by the Employer’s council argued enough evidence had been provided to show an inability to train a U.S. worker.
The pertinent piece of the Code of Federal Regulations (656.17) states that the Department of Labor must evaluate the “training and experience possessed by the alien beneficiary at the time of hiring” and make sure more isn’t being required of U.S. applicants. The exception comes when “the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.”
To that end, the employer’s council mentioned that the CO needed to take into consideration “the change in business conditions” that made it impossible to train a U.S. worker. That change makes it different, the employer argued, than determining whether a new worker can be trained.
The employer supported its position with five primary points:
- A substantial growth in business and therefore in managerial responsibilities;
- The owner’s health problems, which often require him to have extended time off;
- The expansion of business operations;
- That the worker alien is the only employee with the requisite experience to train another Propagation Supervisor;
- That employer has had significant trouble hiring reliable workers in other positions and that employer experiences high turnover every year.
Ultimately, however, the argument was not convincing enough for the judge, who agreed with the CO.
The determining factor for the judge seemed to be that regulations require proof “it is no longer feasible to train a worker to qualify for the position, not that it is no longer feasible for the employer to train a worker to qualify.”
The judge found no reason the current Propagation Supervisor couldn’t be used to train a new worker and therefore saw nothing preventing the employer from hiring a U.S. worker and training them for the same job.