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Bloggings: December 26, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

December 18, 2007

DOL Reinvents Kellogg

The current trend of PERM audits is now focusing on alternate requirements both quantitatively and qualitatively.

By quantitative, we means the number of months or years required by the Employer. As previously reported, the DOL has started to apply SVP as defined on the O*Net, issuing audits and denials for applications which state requirements more than the number of months or years permitted in the O*Net. Despite many arguments to the contrary, the O*Net standard is currently being applied. Employer's with requirements in excess of the O*Net have the option of documenting business necessity using the PERM standard (similar to the standard in Information Industries). Under PERM, the regulations state, "To establish a business necessity, an employer must demonstrate the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner." See 20 cFR 656.17(h)(1).

Recent audits have determined that even if the main requirements are "normal", the alternative requirements may require a separate business necessity analysis. For example, while a Master's Degree requirement is normal for Job Zone Level Four occupations, audits  are now finding that  alternative requirements of a Bachelor's plus 5 years experience may not be normal (Bachelor's uses up two years and five years on top of that resulting in 7 years total SVP, while Master's only uses up 4 years of SVP).

In actual fact, a Bachelor's plus five years of experience does not appear to exceed the standards for alternate exdperience requirements. According to the regulations, "Alternate experience requirements must be substantially equivalent to the primary requirements. See 20 cFR 656.17(h)4)(i)." This is the rule from Kellogg, also known as the Kellogg Triology, a trio of cases that were decided by BALCA. The problem is that the Kellogg cases were a qualitative analysis, i.e., whether the type of experience or education was similar to those required for the job, or whether the occupations were so distant as to be unreasonable and restrictive. Prior to Kellogg, employers successfully argued that requirements that include non-restrictive primary requirements and expansive alternate requirements were not impermissible, because the expansive requirements opened the door to more US job applicants. However, in Kellogg, the DOL reached the opposite conclusion, that if the requirements are widely disparate, it would have occurred due to tailoring to the alien and thus would be be impermissible, hence, restrictive.  This was a reverse restrictive argument: the more expansive you get, the more restrictive!

Despite the strict holding in Kellogg, its requirements were not widely applied, and in some DOL Regions the Kellogg rule was never used to issue a Notice of Findings. Under PERM, for the first two years, Kellogg only existed in theory, since DOL was not issuing audits on this type of SVP issue.

It now appears that the new round of audits has moved from simple SVP (a quantitative analysis) to an analysis of the requirements themselves (a qualitative analysis). The result is murky, since it is unknown how DOL will scrutinze qualitative requirement issues. Prior to PERM, Kellogg denials were usually linked to a lack of bona fide job requirement. The Employer could overcome findings of excessive requirements by producing solid business necessity documentation but could not overcome arguments of lack of bona fide faith, since such findings are made on the "totality of circumstances," and very difficult to appeal.

What to do now to avoid audits and keep the requirements in line with DOL policy? Employers requiring a master's degree should require a Master's plus three years (whenever possible) with the alternative of a bachelor's plus five years progressive experience. While there is real basis for DÍL to argue that a Master's or Bachelor's plus five violates the rule requiring alternative experience requirements must be substantially equivalent to the main requirements, a requirement of Master's plus three years should reduce the possibility of an audit by evening out the actual requirement and the alternative requirement. When an audit occurs, the employer needs to be prepared to submit business necessity for the alternative requirements to justify both quantitative and qualitative requirements.