3. Washington Examiner Challenged as General Circulation Paper
In the Matter of J. T. Inc. D/B/A 7-Eleven (May 2016), the Board of Alien Labor Certification Appeals (BALCA) addresses the question of what constitutes a newspaper of general circulation. Under the regulations at 20 C.F.R. § 656.17(e)(1)(i)(B)(1), an employer is required to place two Sunday advertisements "in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity[...]."
The Employer advertised in the Washington Examiner for the position of a "Night Manager." The Certifying Officer (CO) rejected the application on the basis that the Washington Examiner did not qualify as an appropriate newspaper of general circulation.
This is not the first time that the choice of the Washington Examiner as a general circulation newspaper has been debated before BALCA. In the Matter of Capitol Building Services, Incorporated (February 2013), the paper was deemed to be an appropriate choice for advertising a non-professional position and the CO's denial was overturned. However, BALCA upheld the denials in both Intercontinental Enterprises, Inc. (July 2012) and Milleniumsoft, Building Services, Inc. (November 2015) because the advertisements were for professional positions. BALCA referenced these previous decisions in the instant case and highlighted the important distinction between professional and non-professional positions when selecting an appropriate newspaper for Sunday advertising.
BALCA pointed out that the regulations provide a definition of what constitutes a newspaper of general circulation in 28 C.F.R. § 540.2(b)(1), which states: "A newspaper is one of 'general circulation' if it circulates among the general public and if it publishes news of a general character of general interest to the public such as news of political, religious, commercial, or social affairs." The Federal Register further advises that as long as a newspaper meets this definition, the employer may advertise "in any newspaper of general circulation." (67 Fed.Reg. 30471 May 6, 2002) However, the Federal Register goes on to warn against intentionally placing advertisements in newspapers with the lowest circulation in order to avoid "appropriate exposure" among qualified workers. The regulations therefore require "that the mandatory advertisements appear in the newspaper of general circulation most appropriate to the occupation and the workers most likely to apply for the job opportunity in the area of intended employment."
The decision in J. T. Inc. echoes that in Capitol Building Services, Inc., where BALCA cited the "large circulation" of the Washington Examiner and the fact that the paper "ran mostly advertisements for nonprofessional positions" as evidence that the paper is appropriate for advertising non-professional positions. In J. T. Inc., BALCA concluded that the Examiner is "widely circulated and is an appropriate vehicle to reach U.S. workers interested in obtaining non-professional employment positions."
Although these cases center specifically on the choice of the Washington Examiner, they shed light on the criteria BALCA uses for determining whether a newspaper satisfies the Sunday advertisement requirement. In cities where there is more than one daily newspaper, it is important to consider not only whether a publication qualifies as a paper of general circulation, but whether it would be "likely to elicit responses from willing, able, qualified, and available U.S. workers." [20 C.F.R. § 656.17(e)(1)(i)(B)(1)] These cases illustrate that this determination largely depends on what position is being advertised and whether the position is professional or non-professional. USADWEB has a longstanding policy of selecting the more conservative option when more than one newspaper is available, unless otherwise directed by the client.