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Bloggings: June 04, 2008

by Joel Stewart

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

The Chill Factor Prior to Interview

A recent BALCA decisions reiterates long-standing policy about treatment of U.S workers. In Gaynor Gardens Homes, Inc., 2007-INA-269, BALCA, March 24, 200, the Board addressed an appeal of denial of certification for the position of Systems Analyst. The Employer had received resumes from applicants, but instead of scheduling interviews, sent a request for pre-interview documentation, including (1) Letter from previous employers verifying 1 year of experience in job offered; (2) Copy of diploma showing a diploma; (3) List of three people who can be contacted as references. The Department of Labor did not object per se to all the requirements, but only to the fact that they might have a chilling effect if requested before the interview. In some previous BALCA cases, the Board has ruled that when an applicant applies for a job by sending a resume, the applicant should not be required to apply again by filling out a job application before the job interview.

The board opined that the employer may not shift its burden of verifying requested references to the applicant. Customarily, the employer has the duty of verifying references given by the applicant and it cannot require detailed letters of reference as a precondition to consideration for employment. See John C. Meditz, 1994-INA-572, Sept. 4, 1996, Lee Contractors, 1987-INA-651, Jan. 7, 1988. The Board has held that requests for detailed written references of past employment can have a chilling effect on U.S. workers, and can show a lack of good faith in recruiting. When an employer can easily verify information from a detailed resume, the employer has an obligation to do so.

It is undisputed that an employer can lawfully reject workers who do not respond to reasonable requests for verification of employment history and educational credentials, Al-Ghazali Schooll, 1988-INA-347 (May 31, 1989)(en banc). However, such a request is not reasonable when the employer can easily verify the information. See John C. Meditz, 1994-INA-572, Sept. 4, 1996; Al-Lee Contractors, 1987-INA-651, Jan. 7, 1988. Two principles emerge from these cases. First, the Employer should not discourage applicants from being interviewed by interposing multiple requests for pre-interview documentation. Second, even at or after the interview, applicants should not bear the burden to prove they are qualified; instead, the employer bears the burden of proof. The employer' has to prove a negative and is not permitted to shift the burden to the job applicant.

I discussed this issue with a colleague who has a concurring opinion, but disagrees in part. He points out that in the case, the employer made oppressive requests for documents, but that it would have been possible to send the job applicants a job application form to be submitted to the Employer before the interview. He wrote that in a typical job setting, an applicant would show up for the interview, complete the application and then the employer would review it. Depending on the answers, the interview would be over quickly or could last a while. When his clients send out a letter prior to an interview, however, they are asking the job applicant to complete the application prior to the interview. He concludes that if the applicants completed the application when appearing in person, they could be rejected on that basis, because if they applied in person, they would be rejected anyway for lack of qualifications. The problem in this scenario is that the applicants might refuse to come to the interview because of the request to fill out a job application.

This is especially true in view of the fact that the PERM Rule instructs employers to recruit for workers by instructing them to appear in person or send resumes, whichever is appropriate. An FAQ also states that workers need to be interviewed if they submit resumes. If a worker follows recruitment instructions, he or she has already sent a resume and should be interviewed, unless the resume clearly shows that the applicant is not qualified. The Employer also has to take into consideration that workers may be considered qualified if they do not possess the exact requirements for the job, but if they can perform the job duties, even in a minimal fashion, based on a combination of education, training and experience, or if they can be trained by on-the-job training in a reasonable time.