BALCA on Employee Referral Programs

The BALCA (Board of Alien Labor Certification Appeals) just this week released an opinion stating what an employer must do if it is to use the employer referral program recruitment step in the Labor Certification process. The case is In Re: SANMINA-SCI CORPORATION.

The BALCA says that there must be 3 parts to a satisfactory employee referral program.

(1) its employee referral program offers incentives to employees for referral of candidates,

(2) that the employee referral program was in effect during the recruitment effort the employer is

relying on to support its labor certification application, and

(3) that the Employer’s employees were on notice of the job opening at issue.

The interesting legal analysis is in the third part. In this case, the BALCA says that the employer must specifically note that the job opening was publicized to the employer's staff. In its analysis it said that Sanmina-Sci Corp gave notice in two ways: (a) the Notice Posting; and (b) internal web posting.

The interesting part is that the BALCA does not say if the case would have been approvable if only (a) or (b) existed. In Footnote 6, the BALCA specifically decided not to address that important legal question.

The reason that this question is important is because the (a) Notice Posting exists in every Labor Certification.

The take-away is this: employers should always make sure that the employer has "publicized" the employer referral program through either (i) a blast email to its relevant staff; (ii) an employer's internal website; (iii) an employer newsletter; (iv) a "paycheck stuffer"; or (v) some other similar method. To be safe, the employer should specifically mention the LC-proffered job.

As an aside, the BALCA also reiterates that an employer who posts for 10 days meets the Notice posting step as long as it proves that the employer was open for business during each of those ten days. This is helpful in cases where healthcare facilities are the employer, since these facilities are often open on weekends and holidays.

Typical healthcare occupations that require Labor Certifications include: Occupational Therapists, Speech Language Pathologists, Medical Technologists, and Doctors.