BALCA Interprets “Business Day” Broadly

The Board of Alien Labor Certification Appeals (BALCA) recently addressed the meaning of the term “business day” in connection with the notice-of-filing requirement in PERM labor certification (LC) cases. In this decision, issued October 12, 2010, BALCA allowed consideration of weekends, as the petitioning employer is open for business on those days. This may be helpful in some pending LC cases. However, employers would be wise not rely on this case when determining the appropriate dates to post a notice of filing.

Background: Business Day Not Defined

It is necessary to post a notice of filing as part of the PERM/LC process for the green card. This notice must be posted according to certain specifications for a period of ten consecutive business days. There is no regulatory definition of the term business day. This matter was reported to MurthyDotCom and MurthyBulletin readers in our July 23, 2010 article, Murthy Success: PERM Posting & Meaning of Business Day. That particular article involved Columbus Day; other law firms have had problems with postings that included Veterans Day.

DOL Release of “Round 11” of PERM FAQs

In order to clarify this matter, the U.S. Department of Labor (DOL) released Round 11, PERM/LC FAQs on August 3, 2010. This FAQ set forth the DOL’s definition of business day as meaning Monday through Friday, except for federal holidays.

Restaurant Argues Non-Conventional Work Week and Weekends as Busiest Days

The BALCA decision, the Matter of Il Cortile Restaurant, involved a business that is open seven days per week. Thus, for this restaurant (and, of course, most other restaurants), their business days include weekends. The restaurant’s ten-consecutive-business-days posting period for the notice of filing included weekend days. The DOL denied the case, due to failure to post for ten consecutive business days.

The employer argued, essentially, that in their business, every day is a business day. In fact, weekends are their busiest time and, thus, the purpose of the notice of filing – to notify other workers – is best served by posting over weekend days.

DOL Responds that Weekends are not “Business Days”

The DOL certifying officer (CO) filed a statement of position that Saturdays, Sundays, and legal holidays are not traditionally interpreted as business days. The CO also argued that defining business day according to actual days the employer is open would be administratively unfeasible for the DOL to monitor.

BALCA Uses Subjective Interpretation

BALCA disagreed with the CO’s position. It stated that the purpose of the notice of filing requirement is to notify employees and other interested persons about the filing of a labor certification application. Thus, if the notice of filing is posted when employees are at the worksite and able to see the notice, the purpose has been fulfilled. Thus, BALCA found that the denial for failure to post the notice for ten consecutive business days was improper.

Better Safe than Sorry: Follow DOL FAQs

The BALCA decision does not set precedent. Employers filing PERM applications should be cautious and abide by the DOL FAQs when posting their notices. Therefore, even if an employer is open on weekends and federal holidays, these may not be considered as business days for purposes of the notice of filing. It is simply better to be safe and post for a slightly longer period, which does not include weekends and federal holidays.

This BALCA decision, however, may be helpful for cases that were prepared prior to the issuance of the Round 11 PERM FAQ, if the posting may have spanned a weekend or holiday. There are many businesses open six or seven days per week. Among these are hospitals and other medical providers, retail stores, factories, and many others. Many businesses observe some, but not all, federal holidays. Thus, it is likely that there are more cases that may have notices posted for periods not limited to the Monday-through-Friday-and-no-federal-holiday interpretation.

Conclusion

This situation arose in large part due to a lack of clarity and definition by the DOL. It is understandable that it would be difficult for the DOL to take a subjective interpretation and review the schedule of each business to determine if they were open on weekends or holidays. However, the DOL created a requirement, and used a term without a definition. Given the purpose of the notice, BALCA’s position is quite logical. Had the term been given a definition by DOL from the outset, there would be no argument about interpretation, and less of a chance of case denial over such technicalities.

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