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DOL Repudiates BALCA’s Island Holdings Decision

December 16, 2013

The Island Holdings decision continues to reverberate in the Department of Labor (“DOL”). In a December 13, 2013 filing with the Third Circuit Court of Appeals, DOL announced that it does not recognize BALCA’s decision in Island Holdings as binding because it was decided by “subordinate employees”:

The BALCA’s Island Holdings decision does not reflect the legal position of the Secretary of Labor because the BALCA erroneously rejected the Secretary of Labor’s own plain interpretation of the relevant regulatory provisions, as reflected in the preamble to the Interim Final Rule and a separate interpretive statement accompanying Appendix B.1 in the Federal Register.

It is unclear whether DOL’s new position applies only to Island Holdings or whether it applies more broadly to immigration-related labor certification decisions or to every decision or statement issued by a “subordinate employee” of DOL. DOL’s letter to the Third Circuit does not address these questions specifically.

The implications of this position are staggering. First, employers could not rely on a BALCA order as DOL could repudiate the order at any time. Second, DOL appears to waiving any judicial deference to positions expressed by subordinate DOL employees. Finally, although litigation will be necessary, DOL’s position could undermine DOL’s demands for administrative exhaustion because the administrative process would not necessarily result in an articulated position of the Secretary. Although no one can foresee the ways in which DOL’s position would work itself out in the years to come, there is no doubt that DOL’s December 13, 2013 filing marks the beginning of a new era in DOL administrative practice.

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