BALCA 89-INA-289 (November 26, 1991)

From BALCA En Banc Decision Summaries:

Good faith efforts to recruit: "In legal parlance, an employer who makes timely contact is acting in good faith. However, it is important not to become lost in "good faith" jargon, which easily disintegrates into an analysis of the intent underlying an employer's delay. The proper focus is not on the employer's intent, but on the probable effect on U.S. applicants of the passage of time." Note strong dissents that intent does have a role in assessing whether to invoke equitable remedies.

 

Good faith efforts to recruit: timeliness: this decision contains an extended discussion of the principles underlying the requirement that an employer must contact potentially qualified U.S. applicants as soon as possible after it receives resumes or applications, so that the applicants will know that the job is clearly open to them.

 

Good faith efforts to recruit: timeliness: equitable relief for innocent employers who fail to recruit timely: the Board permits two equitable remedies: "First, an employer who provides a reasonable justification for its delay is given a second chance to recruit; the case is remanded. Second, an employer who provides a legitimate excuse, showing that it did not contribute to the delay, is granted certification; the C.O.'s denial is reversed."