Thursday, October 14, 2010

Weekends Count

One of the sillier assessments made by the US Department of Labor has been its interpretation of a “business day” for purposes of satisfying the 10 day Notice Posting rule. An October 12, 2010 DOL decision puts much more rationality to the interpretation of a “business day” by now allowing an employer to count all of the days that it is open for business.

The Notice Posting rule requires employers to post Notice of a potential Labor Certification Application (including Schedule A Application) at the worksite for 10 business days. The idea behind the law is to give US workers notice of the future Labor Certification, so that they can notify the DOL of any wrongdoing by the employer. Before this decision, the DOL steadfastly had held that a “business day” is a weekday (Monday through Friday) and that federal national holidays would not count as business days.

This interpretation had been particularly irritating for healthcare employers, who routinely are open for business on weekends and holidays. Immigrant visa cases would be needlessly delayed because of this silly interpretation. Occasionally, we would even hear of a case has been denied because of a posting that was done during a minor federal holiday, in spite of the fact that the employer’s hospital remained fully staffed.

The DOL’s Appeal Board, the Board of Alien Labor Certification Appeals (BALCA) thankfully has ended this nonsense. The BALCA opinion makes the vital point that “the purpose of the Notice of Filing requirement is to ensure that an employer’s employees and other interested persons are notified that it is filing an application for permanent alien labor certification.”

Going forward, employers can satisfy the 10 business day Notice posting rule by placing Notice for ten consecutive days when employees are on the worksite and able to see the Notice of Filing.

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