BALCA Affirms Denial Where Employer Failed To Provide Location Of Notice Of Filing

On May 30, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that discussed the requirements involved in posting a notice of filing. The employer submitted a Permanent Employment Certification for the position of Traditional Heating & AC Systems Installer. The Department of Labor issued an audit. When the audit was responded to, the employer failed to state where the notice of filing was posted. Under the requirements of 20 C.F.R. § 656.10(d)(ii), the notice “must be posted in conspicuous places where the employer’s U.S. workers can readily read the posted notice on their way to or from their place of employment. Appropriate locations . . . include . . . the immediate vicinity of the wage and hour notices . . . or occupational safety and health notices.” BALCA upheld the denial because it found that the employer failed to include any information about where the notice of filing was posted. However, it also stated that there may be “other ways to satisfy the [notice of filing] requirements besides stating where [it] was posted.” Consequently, the Board did leave employers some room to argue that the notice of filing requirements are met even when there is no direct statement about the location of the posting. While this decision will provide some welcome guidance for cases with problematic notice of filings, the safest route is to include language stating where the posting was placed.

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