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BALCA on Job Opportunity, Competitive Salary: Matter of Tek Services

November 21, 2016 (1 min read)

Matter of Tek Services, LLC, Nov. 17, 2016- "The CO denied the application because the Employer’s website advertising and job order did not specify a particular salary but rather indicated that the Employer was offering a “competitive salary.” ... The appeal was docketed and the parties were given an opportunity to file briefs. The Employer did so. The CO did not. ... Section 656.24(b)(2) The Board previously rejected the CO’s reliance on this regulation in a decision involving the same employer and largely identical facts. Tek Services LLC., 2016-PER-00207 (November 16, 2016). We reach the same conclusion here. ... We are unpersuaded by the CO’s suggestion that the competitive salary language creates a “burden” on potential applicants that they identify the competitive wage; a burden which might discourage workers from applying or that the reference to a competitive wages somehow could prevent an individual from making an “informed decision” about whether they would be interested in the position. Potential applicants are unburdened since they are under no obligation to identify a competitive wage before they apply. As to making an informed decision, the competitive salary language is certainly more informative than an advertisement that is totally silent regarding the wage, an approach perfectly permissible under the regulation. Equally inexplicable is the CO’s conclusion that competitive salary “is also a relative term that can reflect the employer does not want to announce the salary in its advertisements.” As noted above, the regulations permit advertisements to be silent regarding the wage. In that context, it is impossible to impute ill-motive to an employer’s decision to include this innocuous reference to wages in its advertisements when it was free to say nothing on that subject. ... IT IS ORDERED that the denial of labor certification in this matter is REVERSED and that this matter is REMANDED for certification pursuant to 20 C.F.R. § 656.27(c)(2)."

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