The Council and AILA filed an amicus brief in an en banc case pending before BALCA, an administrative body at the Department of Labor that reviews denials of PERM labor certifications. The case turned on the proper interpretation of a regulation which requires employers to notify certain laid-off U.S. employees about new job opportunities before the employers are permitted to hire foreign workers. The brief focused on the agency’s failure to provide fair warning before applying a new, more restrictive interpretation of the notification requirement.
The Department is notorious for failing to provide guidance and leaving employers to guess what processes the Department will find to be in compliance with the regulations. Here, the Department offered no guidance, but, through a pattern of decision making, established a practice of approving certain notification procedures. Amici argued that the Department acted arbitrarily and violated due process when it did an about face without giving prior notice. The parties reached a settlement on December 11, 2013.
