A very popular common law legal concept and strategy is the act of incorporation by reference. Through this act one document or clause is incorporated into another document or clause by simply mentioning the other document. For example, a Master Services Agreement may state “Section 9 of the Statement of Work applies to the schedule of deliverables”. This means that Section 9 is now part of the Master Services Agreement.
During the labor certification process, the employer is required to conduct a recruitment in the area(s) of intended employment. During the recruitment process, the employer will likely receive resumes from potential candidates. Throughout the recruitment stage, the employer must compile and maintain a “Recruit Report”. Within the recruitment report, the employer must list the candidates and relevant portions of their resume. It turns out, the candidate’s address is now very relevant!
In Matter of JP Morgan Chase, 3/27/12, BALCA found that the employer must list the addresses of the U.S. workers who applied for the job within the recruitment report. Failure to do so is a material omission. Furthermore, BALCA will not recognize incorporation by reference to the addresses listed on the candidate’s resumes.
Practitioners should take note and instruct their clients of this very important process as PERM Audit’s are on the rise and recruitment reports must be provided to DOL.