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Does posting of ads at on-line resources satisfy EEO requirements under US law?

Brian Leiter

That question has arisen in connection with the creation of on-line repositories for job ads.  Rebecca Kukla (Georgetown) forwards the following useful information, from the US Dept. of Labor:

Is the employer permitted to use an electronic or web-based national professional journal instead of a print journal when conducting recruitment under 20 CFR 656.18, Optional special recruitment and documentation procedures for college and university teachers? 

Yes, an employer may use an electronic or web-based national professional journal to satisfy the provision found at 20 CFR 656.18(b)(3), which requires use of a national professional journal for advertisements for college or university teachers. The electronic or web-based journal's job listings must be viewable to the public without payment of subscription and/or membership charges. The advertisement for the job opportunity for which certification is sought must be posted for at least 30 calendar days on the journal's website. Documentation of the placement of an advertisement in an electronic or web-based national professional journal must include evidence of the start and end dates of the advertisement placement and the text of the advertisement.

http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#cutrec6

I'm going to open this for comments from anyone with additional information, and I will ask some law colleagues who work in this area to weigh in.

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14 responses to “Does posting of ads at on-line resources satisfy EEO requirements under US law?”

  1. Ben Saunders

    I'm no lawyer, but what strikes me is the reference to "an electronic or web-based national professional journal". It sounds as if a mere jobs-wiki may not suffice. Perhaps, if necessary, some open access online journal would happily run adverts for the sake of the exposure though…

    Reply
  2. SCM

    It looks like it is a very recent and long overdue change. Callooh Callay!

    Inside Higher Ed has a notice of the change in policy on 31 August 2011 [http://www.insidehighered.com/news/2011/09/08/qt%5D and of the appeals board decision in a UT Brownsville case that settled the issue [http://www.insidehighered.com/news/2011/07/22/qt#265875%5D

    I would think Ben is very likely right that a jobs wiki would not suffice. Nevertheless, at least this would permit an online-only JFP, as long as it were freely available on the APA website (assuming the website starts/continues to function).

    Reply
  3. Rebecca Kukla

    First I want to give credit – I got this from an anonymous commentator on the Philosophy Smoker blog.

    But also what seemed MOST important about it to me was not the online issue but the fact that JFP is clearly NOT sufficient in either print or online form, as it is available to paying members only, which is explicitly ruled out. So all those arguments about how we need to keep JFP for equity reasons seem to me just patently unsound. Am I missing something?

    Reply
  4. SCM

    The relevant section of the CFR is 20 CFR 656.18(b)(3):

    "(b) Recruitment. The employer may recruit for college and university teachers under §656.17 or must be able to document the alien was selected for the job opportunity in a competitive recruitment and selection process through which the alien was found to be more qualified than any of the United States workers who applied for the job. For purposes of this paragraph (b), documentation of the “competitive recruitment and selection process” must include:
    (1) …
    (2) …
    (3) A copy of at least one advertisement for the job opportunity placed in a national professional journal, giving the name and the date(s) of publication; and which states the job title, duties, and requirements." [http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=ca4fed24e83614f09a60ac68b8fcb30d&rgn=div8&view=text&node=20:3.0.2.1.36.3.26.7&idno=20%5D

    The ruling in the UT Brownsville case is worth reading: [http://www.nacua.org/documents/InReUTexasBrownsville.pdf%5D The key paragraph (with my square parentheses) reads:

    "The Employer [UT Brownsville] placed an advertisement in the national professional journal, “Inside Higher Ed” to recruit for the open position, which the CO [i.e., Department of Labor Certifying Officer] determined was only available in electronic form. We find, however, that the CO’s FAQ response [i.e., the Office of Foreign Labor Certification FAQ stating that a print ad is required] imposes a substantive requirement on employers that is not supported by the PERM regulations. The Employer appropriately indicated that it advertised for the position in a national professional journal in accordance with the optional special recruitment and documentation procedures for college and university teachers under 20 C.F.R. § 656.18(b). The CO does not dispute that “Inside Higher Ed” is in fact a national professional journal. Moreover, the CO provides no rationale or explanation as to why an electronic national professional journal is somehow inadequate to advertise the position. Accordingly, we find that the CO abused his discretion by denying the Employer’s application on the basis that the national professional journal in which it placed its advertisement was only available electronically."

    If this is to make much of a difference for recruitment in philosophy, it could only be if the JFP were to become free to members and non-members alike (and actually somewhere one could find it on the "website"). Whether the APA is willing to take this bold step into the unknown universe of Free Online Content is another question.

    Reply
  5. Rebecca Kukla

    Ok Eric Winsberg pointed out to me that my reading is slightly too simplistic, as there is no legal requirement that the print edition be free. But (a) then it's at least clear that web-only JFP ads not only don't suffice but are farther from sufficing than free online boards, and (b) I'm betting that even if you can advertise in a print venue that is not free, advertising in one that you need to pay serious membership dues to have access to violates both the letter and the spirit of the access rules. Shelling out $150 or whatever for APA membership – which, in principle, you could be denied – is NOT the same as going and buying a newspaper for a couple of bucks.

    Reply
  6. Harry Brighouse

    I'm a bit confused by the (strategic, rhetorical) point of this question. Is it that a jobswiki wouldn't be enough, or that the APA as it is is not enough? It seems that Rebecca is animated by the latter (fine by me). If the purpose of the current mobilization is to undermine JFP or force it to be free on the web, the threat of posting free on the web PLUS in CHE (which must be good enough, no?) would be enough, right? (I've no idea what CHE's rates are, and it does seem not at all useful, given that nobody looks in CHE for Philosophy jobs, and that would continue once a critical mass wiki is created). Not at all criticizing Rebecca or Brian, just looking for guidance.

    Reply
  7. Rebecca Kukla

    Fair enough, Harry. For me the motive is this: I think the APA has proven itself radically inept, I think the primitive nature of JFP is stupid, and I think that having our main job listing be available to paying members only is actually immoral. So I would like to see us move to a new standard forum like the free online listing that just got going. Others usually seem to agree that the current system is meshugena and unacceptable but they fall back on the argument that we have to keep using JFP because it meets the equity rules. But it doesn't. So as far as I can see there is no reason at all for continuing to use it.

    So it's both your options above: the JFP is not enough (because it is for members only and inept), the jobswiki in my view would be enough, if it got well-established (because its free and ept).

    Reply
  8. David Morrow

    I just want to say that Chris and I are following this discussion closely to see whether there is anything we could do to make Phylo Jobs meet the legal requirement.

    Also, it's worth emphasizing that Phylo Jobs is not a "jobs wiki" in the sense that it is not editable by the general public. All posts are moderated and verified against recognized external sources, such as departmental web sites, university HR sites, the Chronicle, etc. It's no more a wiki than this blog is.

    Reply
  9. Jon Weinberg

    I want to add a note for the benefit of folks who are coming over from the Law School Reports blog, and who may be confused by the title of the post: This isn't an EEO question at all. As the comments make clear, the question here is about immigration-law requirements in connection with hiring faculty who aren't U.S. citizens or lawful permanent residents.

    On the merits (I'm writing here as an immigration-law teacher not closely familiar with this particular corner of the law): 20 CFR 656.18 requires publication in a "national professional journal." That's the requirement. Whatever the policy arguments against using JFP for this purpose, the fact that JFP requires substantial membership dues doesn't, to my mind, *in and of itself* disqualify it from being a "national professional journal." I don't know anything about JFP, so I won't opine on whether it's otherwise a "national professional journal" or not. Similarly, when it comes to Phylo Jobs, Chris and David's task is to make that site look as much as possible like a "national professional journal." Since Phylo Jobs doesn't publish papers or do other things that journals conventionally do, it'll likely be really hard to make that case to the agency.

    BL COMMENT: Many thanks to Professor Weinberg for this clarification. There will also, I suspect, be EEO issues with on-line ads, but it is important not to confuse the issues, as my title did.

    Reply
  10. Rebecca Kukla

    Right, David, sorry. Of course it is not a wiki. My bad.

    One feature that it would be nice to see on the board, if you are taking suggestions, is an option to search by a few major metro areas. (This is not an equity issue – just a niceness issue.) You can't list all areas of course but presumably there are a lot of candidates who would really like to find a job near New York, Boston, Washington, Chicago, London, etc. – places with a lot of schools. I can see this being especially helpful for couples who would like an elegant way to search for positions that are near one another. You could introduce an option for departments to list their jobs as near one of these major areas, sort of like sabbaticalhomes.com. Right now the only tiny advantage that JFP has over your board is that it breaks up jobs by region, although their geographical classification has never seemed the most relevant to me and my intuition is that something like what I just suggested would be more helpful. Just a thought, FWIW.

    Reply
  11. Eric Winsberg

    Thanks to Professor Weinberg for his comments. Those are very helpful in clarifying the issues that Rebecca and I were discussing. As for his suggestion that "Chris and David's task is to make that site look as much as possible like a "national professional journal."", I have the following suggestion for Chris and David: Why not "marry" the site in some way or another with one of the open access philosophy journals on the 'tubes, like Philosopher's Imprint. If David Velleman is listening: what would you think about that suggestion?

    Reply
  12. Rebecca Kukla

    I think that linking with PI or some such journal is a splendid idea (says someone who doesn't have to do any of the work). 🙂

    Reply
  13. Andrew Janiak

    Just to add to what Professor Weinberg says above: I checked with my sister, who is an expert in employment law in the non-profit sector, and she indicates that the text quoted by SCM above has nothing to do with EEO issues (the regulation pertains to the labor certification process for the employment-based green card of a foreign worker). But as BL indicates, there may be other EEO issues. As for that: my sister indicates that the most relevant EEO requirement is that the advertisement for a position be "broadly accessible" to the professional community that we are trying to reach. She concludes that if this criterion is met, an online-only publication would be permissible. One question, as others indicate, is whether the JFP actually meets this criterion. Another question is whether a replacement for the JFP could meet it. I suppose that in the early days, one could employ Leiter's blog, PhilUpdates, the jobwiki, etc., to advertise a new site, and then after some time, it would become common knowledge (at least as common as knowledge of the APA is!).

    Reply
  14. Kathryn Norlock

    FOr the sake of foreign workers (now that I've become one, I care so much about us!), it may be best for the Phylo site to marry a journal like Imprint. In the meantime, though, it really seems sufficiently comparable to Inside Higher Ed, what with the Phylo blog, forum, data collection and related projects. What does IHE do that Phylo doesn't, really? The wiki is one page among others.

    Reply

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