Employers Need not Document Posting Dates of NOF - BALCA

BALCA confirmed that 20 CFR 656.10(d) does not require documentation of the posting dates of the Notice of Filing (NOF) and that the affirmation on the ETA 9089 that the NOF complies with the regulations is sufficient.

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Highlights below

• Under the PERM regulations, when an employer files an application for permanent labor certification, it must provide notice of the filing of the application (“NOF”) to its employees. 20 C.F.R. § 656.10(d)(1). This is done by posted notice, for at least 10 consecutive business days, at the facility or location of the employment. 20 C.F.R. § 656.10(d)(1)(ii). The regulations further state the NOF must be “provided between 30 and 180 days before filing the application.” 20 C.F.R. § 656.10(d)(3)(iv). Section 10(d) contains specific requirements as to the content of the NOF, but nowhere does it specifically require the Employer to document or identify the precise dates the NOF was posted. 
•  20 C.F.R. §656.10(d)(ii). The regulation goes on to state that when an employer is asked to document its compliance with this section, the documentation requirement can be “satisfied by providing a copy of the posted notice and stating where it was posted…” Id. There is no requirement that the specific dates of posting be supplied as part of the documentation requirement. 
•  The question of whether an employer must document the precise dates of the NOF posting has been addressed by other BALCA Panels. See Big Dog Homes, LLC., 2011-PER-01421 (Dec. 27, 2012) (affirming CO‟s denial); VIP Tours of California, 2011-PER-00540 (March 19, 2012) (affirming CO‟s denial); Future Quest USA, Inc., 2010-PER-01516 (March 6, 2012) (affirming CO‟s denial); Salem Village Nursing and Rehabilitation Center, LLC., 2022-PER-00587 (Jan 27, 2012) (affirming CO‟s denial).   
•  In Sonora Desert Diary, the Panel determined: [a]lthough 20 C.F.R. § 656.10(d)(1)(ii) pertaining to how the NOF may be documented does not specifically state that an Employer must give the dates the notice was posted, we agree with other BALCA panels that have found such a requirement to be implicit. If the Employer does not provide the dates, the CO cannot independently verify either that the notice was posted for ten days or was posted between 30 and 180 days before filing ETA Form 9089. 
•  The PERM regulations are rife with minutia, requiring an applicant‟s exacting adherence the first time around. There are no second bites at the apple, and when an applicant omits information required by the regulations, denial is the certain consequence. See 20 C.F.R. § 565.11(b) (“requests for modifications to an application will not be accepted for applications submitted after July 16, 2007.”). 
•  Here the regulations set forth a minimum standard for documenting compliance with the posting requirements, and those standards do not include specifying the precise dates the NOF was posted. 
•   It is presumed the absence of such particularity in documenting the specific dates the NOF was posted, was intentional by the drafters. See Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (“[W]here Congress includes particular language in one section of a statute, but omits it in another . . . , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). 
•  Therefore, although nothing in ETA Form 9089 requires the Employer to document the specific dates the NOF was posted, the Employer must still affirm, under oath, that the NOF complies with the regulations set forth in Section 10(d). Here, the Employer properly affirmed that the notice was posted for ten consecutive business days within the specified period, and therefore met its obligations under Sections 10(d)(1)(ii) and 10(d)(3)(iv).