Notice of filing travel requirements - Important Decision from BALCA

In the case, Matter of Oracle American, Inc., BALCA held that although the plurality in the Job title indicates that Notice of filing was actually for multiple job positions however, the way the travel requirement was stated does not give enough distinction that it only applied to some of the positions. See the full case by clicking here and also excerpt is listed below.  

  1. On October 4, 2010, the CO denied the application because various forms of recruitment, including the Notice of Filing (“NOF”), listed a travel requirement not included in the ETA Form 9089, in violation of 20 C.F.R. § 656.10(d)(4) and 20 C.F.R. § 656.17(f)(6).
  2. The Employer filed a request for reconsideration, arguing that the NOF was for multiple positions and the phrase “[m]ay be assigned to various unanticipated sites throughout the United States” did not create a mandatory requirement for all of the multiple open positions listed on the NOF. 
  3.  The Employer further argued that the use of the term “may” indicates that travel “might or might not be part of the job” and since the NOF covered multiple positions, if some of the positions “may” involve travel, then it follows that some of the positions “may not” involve travel. 
  4.  The Employer asserted that nothing in the NOF would dissuade U.S. workers from applying to the position. With its request, the Employer attached “Notes from DOL Stakeholders Telephone Conference June 22, 2010” addressing the use of advertisements containing multiple job openings. 
  5.  On May 23, 2011, the CO denied reconsideration and forwarded the case to BALCA stating that “open ended terms or conditions of employment like ‘may’ require assignment to various locations, could, in fact, be considered a necessary requirement by interested individuals attempting to determine whether to act on the NOF.” 
  6.  The Employer additionally argued in its brief that the NOF merely identified potential “incidental travel,” which did not create a job requirement changing the nature of the position or exceeding the job requirements listed on the ETA Form 9089. The Employer asserted that incidental travel, such as attending an industry conference, visiting a client or attending a training seminar, is neither a term nor a condition of employment as it does not change the requirements or the day-to-day duties for the position, and therefore does not need to be included on the ETA Form 9089. The Employer added, even if it was required to reference incidental travel in the applications, there is no space on the applications for including such incidental travel, and thus the CO cannot deny certification on this basis. 
  7.  BACLA has consistently held that an employer cannot include a travel requirement in an advertisement for a single position, where none is listed on the application, as it violates 20 C.F.R. § 656.17(f)(6). Microsoft Corporation, 2011-PER-00324, PDF at 9 (Feb. 29, 2012) (citing JPP Eurosecurities, 2010-PER-00160 (Feb. 25, 2011); Xpedite Technologies, Inc., 2010-PER-00100 (Apr. 7, 2010)). However, establishing compliance with Section 656.17(f)(6) in an advertisement for multiple job opportunities with differing travel requirements is not as clear. 
  8.  In a recent decision, Microsoft Corporation, 2011-PER-00324 (Feb. 20, 2012), a BALCA panel reversed a CO’s denial based on similar facts to the cases presently before us. In Microsoft Corp., the employer did not list a travel requirement on its ETA Form 9089, but included the phrase “may require employer-reimbursed travel” in its NOF listing multiple position openings. In reversing the denial, the panel focused on the fact that the description of duties and requirements in the NOF were written in the disjunctive, demonstrating a contrast between the different job openings. The panel stated that “the requirements in th[e] advertisement are all described as alternatives or as possibilities, which conveys that some of the requirements apply to some of the positions, while other requirements apply to other positions” and “[t]here is nothing in this advertisement to indicate that some of the requirements apply to all of the positions.” The panel also reasoned that “given the variety of job descriptions, education, and experience requirements, anyone reading the advertisement would understand that the education and experience requirements do not apply to each and every position.” Lastly, the panel found that because the NOF was for multiple positions and the requirements were written in a passive voice, it was understood that the subject of each sentence was “some positions.” 
  9.  The Microsoft panel concluded that it was “clear within the overall context of the advertisements that not all of the Marketing and Product Manager positions require travel. As such, the panel found that “in the context of this advertisement,” the phrase “may require employer-reimbursed travel” is indistinguishable from the language “some positions may require travel”5 approved by the DOL in the June 22, 2010 Stakeholders Telephone Conference. The panel in Microsoft noted the limited scope of its holding, based on the specific facts of the case. In a footnote, the panel warned that “if an employer does not use the DOL-endorsed language, a fact-specific inquiry will be necessary to determine whether any potential applicant could have been confused or misled into believing that all positions advertised required travel.”
  10. We find that on the facts of the cases before us, a potential job applicant could be confused in thinking that all the Software Engineer positions had the potential requirement of travel. In Microsoft, the panel relied on the fact the employer’s NOF listed a “myriad” of job requirements and duties, all listed in the disjunctive, signifying that not all the requirements applied to all of the positions. In contrast, the NOF in the appeals before us did not list any job duties or requirements other than the possible travel requirement. Although it is clear that the NOF was for multiple positions as it states “Software Engineers” in the plural, the NOF did not contain multiple requirements, listed in the disjunctive, for the various positions listed on the NOF. Thus, there are no contextual cues in the NOF that would signify to a reader that the travel requirement only applied to some of the positions. The Employer in no way differentiated between the various software engineer positions. Additionally, unlike the Microsoft case, the travel requirement in the NOF is not in the passive voice, “making it understood that the subject of [the] sentence is ‘some positions.’” Thus based on the “overall context” of the NOF in the appeals before us, it is not clear that an applicant would know that the potential travel requirement does not apply to all the positions. As such, the phrase “may be assigned to various unanticipated sites” constituted a travel requirement that exceeded the requirements listed in the ETA Form 9089. 
  11.  We find no merit to the Employer’s argument that language in the NOF referred only to “incidental” travel. There is nothing in the NOF that suggests that the possible travel was “incidental” in nature. Further, although the Employer argues otherwise, its request to amend the application to add the travel requirement would constitute a modification prohibited under 20 C.F.R. § 656.11(b), and therefore is not allowed.


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