The Board of Alien Labor Certification has taken a step to clarify the meaning of "business day" in the Department of Labor's Permanent Employment Certification (PERM) process. An administrative judge ruled earlier this month that for the purposes of PERM filings the business day is not limited to weekday and non-holidays.
In late 2007 a restaurant filed a PERM application for "Chefs and Head Cooks" which was initially denied by the Certifying Officer on an unrelated issue. On reconsideration early this year the CO denied on the grounds the restaurant's "Notice of Filing (NOF) was posted for fewer than consecutive 10 business days."
The restaurant filed for reconsideration again, pointing out that since it was open on weekends and holiday the traditional definition of business days did not apply. A "full employee workload" was required on weekends and its two busiest days were Saturday and Sunday.
In April the CO again rejected certification on the grounds that "for the purposes of the Permanent Labor Certification program, business days as related to the posting of NOF are defined as Monday through Friday excluding weekends and Federal holidays."
The CO forwarded the case to BALCA in May. In August it filed a position statement arguing that "defining business day according to the actual days the employer is open would make administration of the Notice of Filing provision unfeasible."
Ultimately BALCA disagreed with the CO. The judge pointed out BALCA has never found business days are limited to Monday through Friday. He wrote that the purpose of the NOF 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" and that would be satisfied, in the case in a restaurant, by posting on Saturdays and Sundays.
As long as the NOF is posted for ten consecutive days where worksite employees can see it, he wrote, the requirement is fulfilled.
At first glance this looks like a favorable decision by BALCA. Providing flexibility for businesses with non-traditional operational practices can only help make the process fairer. The impact of opening up the term "business day" should be far-reaching. It will be interesting to see how this affects future issues related to PERM.
