As the service sector of our economy continues to grow, so too does the competition to cater to consumer demands for business hours on weekends and holidays. Increasingly, employers are expanding the number of business days and hours they remain open for business. In doing so, they are eroding the traditional notion that business days merely comprise Monday through Friday, excluding weekends and holidays. Catching up to this consumer-driven phenomenon has not come easy for the U.S. Department of Labor (DOL), but a recent decision from the Board of Alien Labor Certification Appeals (BALCA) has compelled the DOL to take note.
The BALCA decision, In the Matter of IL Cortille Restaurant (http://tinyurl.com/3894gt4), concerned a labor certification recruitment campaign conducted by a restaurant to the benefit of its chef. A labor certification is a DOL-regulated process in which an employer demonstrates a shortage of available U.S. workers to fill an employment position currently occupied by a temporary foreign national worker. If the recruitment campaign demonstrates the shortage, the temporary foreign national employee can apply for U.S. residence. One of the DOL regulations that employers must fulfill to demonstrate the shortage of U.S. workers mandates that employers post a workplace notice of the available employment position “for at least 10 consecutive business days.” The regulation does not define “business days.” Because the restaurant is open seven days a week, the restaurant counted Saturday and Sunday as business days in fulfillment of the regulation.
The DOL denied the restaurant's application because it concluded that Saturdays, Sundays, and legal holidays are not traditionally interpreted as business days. By excluding Saturdays and Sundays from the tabulation, the DOL concluded the restaurant failed to post the job availability notice for sufficient days. The court vacated the DOL's decision, concluding that as long as an employer has employees working on weekends or holidays, those days are business days within the meaning of the regulation.
In reaching its decision, the court rejected the DOL's assertion that its adjudication of labor certification applications would become unduly burdensome if it had to consider an employer's particular days of business rather than a blanket rule that business days are limited to Monday through Friday. The court concluded such a blanket rule is not only inconsistent with the reality of today's economy but would undermine the notice purpose of the posting requirement. After all, the court concluded, many service and retail businesses conduct more business on weekends than weekdays.