BALCA Finds Must Use Higher of Two PW Surveys

April 30th, 2011

In Take Solutions, Inc., 2010-PER-00907 (April 28, 2011), BALCA found that where the employer receives two different prevailing wage determinations (PWD) for the same position based on its primary and alternative minimum requirements, it must use the higher of the two. In this case, the employer filed a Form ETA 9089 PERM labor certification application with the primary requirements a bachelor’s degree and five years of experience and its alternative minimum requirements a master’s degree plus one year of experience. The employer had obtained two different PWDs for the same position. On the Form ETA 9089 PERM labor certification application, it referred to the lower PWD based on the master’s and one year of experience (given skill level 2). In response to an audit, the employer provided the higher PWD based on a bachelor’s degree plus five years of experience (based on skill level 4). The CO denied the PERM application stating that the PWD provided by the employer did not match the PWD noted on the PERM application. The employer filed a motion for reconsideration along with the PWD noted on the Form ETA 9089, which was a lower PWD and based on the alternative minimum requirements of a master’s degree plus one year of experience. The CO denied the motion because the PWD referred to in the PERM application did not match the PWD provided on audit and the CO did not consider the PWD provided by the employer on reconsideration.

BALCA held that where the employer receives two different PWDs and provides such evidence that it must use the higher PWD. BALCA reasoned that this was to protect the wages of US workers, since if the employer paid the lower wage, based on the alternative minimum requirements of a master’s plus one, to workers with a bachelor’s plus five years of experience, it would have an adverse affect on these workers by underpaying them. BALCA also held that its decision was compelled by the fact that the PERM regulations require that the job application be clearly held open to the broadest possible minimally qualified applicant pool.