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
The technical language used by the employer requires
concentration to understand the nuances of the court's
On Form 9089:
Occupation: Software Developers Applications. SOC 15-1132.
Requirements: Master's degree in an IT Related field or,
alternatively, a Master's in Computer Science, MBA,
Engineering, CIS, MIS or Related. No experience requirement.
Description of Duties: Development of Java Enterprise Edition
JEE applications. As a Sr. Java Developer responsible for
analyzing, designing, developing and documenting JEE projects
within central JEE application development environment. Must have
knowledge of Struts JEE Application framework, JSP/Tiles, Spring
framework, tag libraries, iBatis and sQL and Oracle Database
Technology Etc. Must be willing to travel, perform feasibility
studies and interact with clients for different long and short-term
In the recruitment steps, including www.monster.com
and newspaper advertisements in the Atlanta-Journal Constitution
and Atlanta Business Chronicle:
Entry Lvl to Sen. Lvl AQ Analysts w/ foll. Skills: WinRunner,
LoadRunner, Silk, Quick Test Professional, TestDirector, Rational
Suite, SQA Suite, SQA Robot, SQA Manager, SQA Test Log Viewer,
& SQA Comparator etc.
Entry Loll to Sen. level Java Developers w/ fall skills: Struts
JEE Application framework, JSP/Tiles, Spring Framework, tag
libraries, abatis' & SQL & Oracle Database Technology
Trav. & reloc. may be reqd. Send resume, ref. & sale.
req. to open soft, Inc., 3040 Carrick Road, Cumming, GA 30040.
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
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
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
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