BALCA decision on 9089 form and Kellogg requirements
In Matter of Federal Insurance, decided on 2/20/2009, by BALCA, (Case No.: 2008-PER-00037), the Board noted that: "This appeal does not concern whether the Kellogg regulation applies to the employer’s application – it clearly does – but rather whether the Employer’s application should be denied because the Employer did not affirmatively write on the application that “any suitable combination of education, training or experience would be acceptable.” Because the existing Form 9089 does not reasonably accommodate an employer’s ability to express this attestation, we hold that it would offend fundamental due process to deny an application for failure to write the attestation on the Form 9089. ... Here, the absence of the Kellogg language (or possibly the substantive equivalent of the Kellogg language) on the form renders it difficult to know whether the Employer was in substantial compliance with the regulation, or whether it was unequivocally willing to attest that it was. ETA’s deficient form and failure to post readily accessible clarifying instruction, however, is largely responsible for this difficulty. Accordingly, we vacate the CO’s denial based on the missing Kellogg language and order that the CO grant certification." A new 9089 form has already been released by the DOL recently which provides a specific location for the Kellogg language.
