Other Job Order Issues
All job orders are automatically posted on JobCentral. Suppressed orders will be posted to JobCentral without providing the employer's identifying information.
JobCentral at www.JobCentral.com
When a complaint, question, or concern is raised about a job order, the staff person receiving the complaint should always try to address the concern in an honest, accurate, and informative manner. If the complainant is not satisfied with the answer, then he/she should be directed to the next level of management, to the local Job Service Complaint Specialist, or to the local Job Center Complaints Coordinator, depending on local procedure.
Note: The Job Service Bureau has a formal Job Service Complaint System including U.S. Department of Labor complaint forms. Both employers and job seekers can use the complaint system. Each Job Service District has a designated Complaint Specialist available for consultation and assistance.
A job order must represent a definite, bona fide job opening. Listing continuous job orders, where the employer is continually hiring, is appropriate as long as a bona fide job opening or openings exist. Employers should be cautioned that continuous listings may be less effective and their use should be discouraged. When continuous listings are used, they should be updated frequently. Job Center of Wisconsin will default to close job openings after 30 days, although an order may remain open on Job Center of Wisconsin for up to 90 days.
Do not accept job orders that will be used solely for the purpose of building resume job application files. An employer who is aware of a retirement, expansion, or similar situation and is reasonably certain there will be a bona fide job opening within the next 90 days can list the anticipated opportunity on Job Center of Wisconsin. If the employer is not willing to state that they are reasonably certain a job opening will be available within 90 days, the employer must not be allowed to post a job order on Job Center of Wisconsin. Instruct the employer to call when they are reasonably certain that there will be an opening within 90 days.
Civil service, county, city, and similar opportunities can be listed on Job Center of Wisconsin if the employing unit is reasonably certain of a bona fide job opening within 90 days. If the employing unit is building an eligibility list for an anticipated job opening, the job order should clearly state that in the Job Duties and Responsibilities field.
Job orders that are not in compliance with all applicable state or federal employment laws will not be accepted. This includes all state and federal wage and hour laws, child labor laws, discrimination laws and disability laws.
It is assumed when an employer asks questions or requests certain qualifications of an applicant, that those answers or qualifications are related to the function of the job. If it is not clear what the relationship is between the question or requested qualification and the functions of the job, it is appropriate to question the employer.
When a question arises about the legality of a job order, staff must follow the process for policy and procedures issue resolution that is outlined just after Section B of this document.
Please note: Native American tribal entities or businesses located on tribal lands are not subject to state laws and regulatory agencies. Job orders placed by these businesses do not need to comply with non-applicable state laws. See A21. Native American Sovereignty and Job Orders and policy memo regarding preference language used by tribal entities in job orders entitled "Preference Language in Job Orders", dated October 13, 2004.
Job Service and other Job Center staff should not administer employment tests for employers until and unless it has been determined the tests are valid and standardized. The DWD Director of Counseling and Testing can assist staff to make this determination.
To avoid potential liability, employment testing should not be conducted in Job Centers until this determination is made even when staff are not involved in the administration. The requirement to participate in an employment testing can be mentioned in job orders if the test is relevant to the job.
B6. Fees, Investments, and Purchases as a Condition of Employment
Job orders will not be accepted when the employer or agent of the employer requires the applicant to pay a fee to apply for, be referred to, or be considered for employment. Universal access to basic labor exchange services will be at no cost to job seekers.
Referrals to private employment agencies are permitted as long as the applicant is not charged a fee.
Monetary investments and purchases of employment related items are not considered fees. Employment situations involving investments or purchases may or may not be acceptable depending on the circumstances involved. Investments or purchases that primarily benefit the employer, cover the costs of the hiring process, or would commonly be considered the employer's cost of doing business are unacceptable for a job order.
Investments or purchases that are primarily personal, benefit the employee, are a cost of entering an occupation, or that are usable in other employment or personal situations are acceptable for a job order. Important factors in making these decisions are ownership of the item, control of the item, and transferability to other employment situations. Staff should exercise professional judgment and look at the whole employment situation in making these decisions.
Examples of unacceptable costs to the applicant include:
- Paying for employment tests such as personality surveys, aptitude tests, skill assessments or civil service tests.
- Paying for background checks.
- Purchasing sales inventory (raises an issue of the situation being self-employment).
- Purchasing sales kits that are specific to the company.
- Purchasing safety equipment that would reasonably be considered a cost of doing business.
- Drug testing and medical examinations as a condition of employment are required by law to be paid for by the employer. The job order will clearly state any requirement for pre-employment medical testing.
Examples of acceptable costs to the applicant include:
- Professional or occupational licenses such as nursing certificates, insurance licenses, teaching certificates and CDL driving licenses.
- Occupational certifications normally obtained as part of a vocational training program..
- Tools in occupations that normally own their own tools such as mechanics and the construction trades.
- Uniforms, clothing, or safety items common to the occupation such as nursing uniforms, safety shoes, gloves, or professional clothing.
- On-the-job use of personal vehicles where mileage is reimbursed.
Any requirements for purchases or use of personal property should be clearly stated on the job order.
Wagner-Peyser Act (29 USC sec 49L)
Workforce Investment Act (Title I sec 195 para 5)
20 CFR 661.410, b2
One method for an employer to fill a vacancy when they are unable to find qualified applicants locally is to obtain a Permanent Foreign Labor Certification from the United States (U.S.) Department of Labor (DOL). DOL must certify that there are no qualified U.S. workers available and willing to accept the job.
As part of this recruitment process, the employer must submit the Agricultural and Food Processing Clearance Order ETA Form 790 to the SWA at least 60 days before, but not more than 75 days prior to the employerâ€™s date of need.
This means they must place a job listing with a State Employment Security Agency.
There are other requirements of the program that are not the concern of job order writing staff. The foreign labor certification (FLC) process is the responsibility of the employer, not the employee, or Job Center staff.
Permanent Foreign Labor Certification job orders should be indistinguishable from any other job order. Staff will handle these job orders in the same manner as any other job order.
Job orders may be placed by the company directly, or by a company representative (an immigration attorney or immigration agent). Applications or resumes may be submitted to the company or to the company representative. Company representative entering job orders online should register to use Job Center of Wisconsin under the workplace company name.
Temporary FLC job orders are entered, serviced, and closed by the state Foreign Labor Certification Coordinator in the DWD central office. The employer names in these orders are suppressed to ensure that all resumes are sent through the central office for review and not directly to the employer. Temporary FLC job orders will be recognizable because the FLC office in Madison will be listed as the employer and the point of application. Temporary FLC job orders are not to be updated, closed or otherwise modified by local field staff.DWD Information direct the link to: DOL Information direct the link to: http://www.foreignlaborcert.doleta.gov/
B8. Independent Contractor Opportunities
The purpose of the public labor exchange is to facilitate employment. Job orders will only be accepted that offer employment opportunities where an employer-employee relationship will exist. Independent contractor opportunities are self-employment, which represent business opportunities, rather than employment. The individual is responsible for paying his/her own quarterly income taxes, disability insurance in lieu of Worker's Compensation, Social Security taxes, and other such costs of doing business. Such requests cannot be accepted as job orders.
One test used to distinguish an independent contractor opportunity from a legal employment opportunity is:
If the employee is issued an IRS Form W-2, it is employment.
If the individual is issued an IRS Form 1099, it is an independent contractor opportunity.
Examples of Independent Contractors:
- Home-based businesses such as Tupperware, Stanley Products, Amway, etc.
- Independent Insurance Agents
- Real Estate Brokers
- Truck Drivers who are owner/operators
Note: These examples are not inclusive but represent some occupations that usually are considered independent contractors.
20 CFR 651.10, 20, 30 and 50
USC 29 Section 49
Independent Contractors will not be permitted to participate in Job Service-led Job Fairs.
For example, in one Job Center, a company looking for independent insurance sales representatives would not be able to participate in the Job Fair because Job Service manages the event. However, in another Job Center, the Job Center Team hosts the Job Fair with Job Service playing only a small role in managing and coordinating the event. The company is allowed to participate in this Job Fair because the Job Center Team managing the Job Fair allows it.
B10. Labor Disputes
Job orders will not be accepted for positions that are vacant due to a labor dispute, strike or lockout.
When a job order is received from an employer reportedly involved in a labor dispute involving a work stoppage, staff shall verify that a labor dispute exists and determine if the position is involved in the labor dispute. If the position is not involved in the labor dispute, the job order can be written. If it is involved, the job order cannot be accepted.
When does a labor dispute exist? Clearly, a work stoppage, either a strike or lockout, triggers our policy. Can a labor dispute that has not resulted in a work stoppage trigger our policy? Yes, but it depends on the situation. These situations must be looked at on a case-by-case basis. There needs to be more than the possibility of a work stoppage. An actual event or action is needed. Rumors of a strike, knowledge that the labor contract has expired, or news media reports of difficult labor negotiations may not be sufficient to trigger our policy.Staff should consult with management or seek technical assistance in these situations before accepting or declining a job order.
Staff shall resume full job order taking services when they are sure that the labor dispute has been terminated.
Local Job Center staff should call the Job Service Bureau policy staff in the Central Office to notify them of any labor dispute. The Central Office will notify the federal authorities if that is required by federal regulations.
When a job order is taken for a position NOT involved in the labor dispute, but at a company with a labor dispute, the following mandatory statement must be checked on the description tab of the job order:
"This position is with a company currently involved with a labor dispute. This position is NOT part of the dispute and the person hired will NOT be replacing an employee involved with the labor dispute."
Please note: Staffing agencies may be used to recruit replacement workers during the labor dispute. We cannot accept job orders that would recruit for positions affected by the labor dispute. For this reason, job order policy requires staffing agencies to provide the name of the work site company on all job orders. This information is placed in the staff comments section and must be kept confidential by staff.
See Job Order Policy Memo " Job Orders and Labor Disputes" dated December 6, 2004.
Code of Federal Regulations, 20CFR 652.9
B11. On-site Recruitment
An employer who does on-site recruitment at a Job Center must have a job order listed on Job Center of Wisconsin at the time of the recruitment.
Job orders will be processed as soon as possible. Job orders should be entered (or reviewed and approved, if entered by the employer) into Job Center of Wisconsin as soon as possible. All job orders are processed in the order in which they are received. Orders shall be verified for accuracy of content immediately. Promptly close all job orders when filled.
B13. Training or Work Experience Opportunities
Work that is primarily a training or work experience opportunity must NOT be listed on Job Center of Wisconsin. Agencies who offer individuals the opportunity to gain work experience, work readiness, training, job development, skill building or similar activities are not to be included as jobs on Job Center of Wisconsin. However, the kinds of opportunities mentioned above can be posted in Job Centers and Job Center staff can distribute information about them.
To determine if an opportunity is appropriate for Job Center of Wisconsin, three criteria should be considered:
Does an employee-employer relationship exist between the worksite organization and the worker?
Is the work activity primarily intended to provide experience, build work readiness, overcome employment barriers, develop employment skills, or directly connected to a course of study? OR, is it primarily work that has an entry level, training, on-the-job training, or apprenticeship component?
Is the opportunity available to the general public? Is there a need to advertise the opportunity outside of existing program participants to recruit candidates?
If no real employer-employee relationship exists, the activity is primarily training focused and the general public cannot apply, the opportunity is inappropriate for, and should not be listed on, Job Center of Wisconsin.
Apprenticeship opportunities are an exception as explained in Section A3. Apprenticeship of this policy document.
Title V of the Older Americans Act of 1965 establishes an "Older Worker Community Service Employment Program". The program uses community service opportunities to promote part-time employment for low income persons 55 years old or older. Jobs created under Title V programs are appropriate for Job Center of Wisconsin. They are not discriminatory because they provide a preference to older workers and are specifically authorized by Federal legislation. They are primarily employment and not training as required above.
B14. Unusual Job Orders
Job Center of Wisconsin and the services of Job Service are paid for entirely by public funds. For this reason, Job Service reserves the right to refuse or discontinue the listing of a job order that is contrary to community standards of good taste or decency, is misleading, or appears to involve conduct that violates state law.
If a job order writer who is authorized to make the determination decides that a job order should be refused or discontinued under the policy stated above, the job order writer shall notify the Job Service Supervisor for the local office, who will notify the person who submitted the job order. The submitter may request a review. The review will be conducted by the Director of the Job Service Bureau or the Director's designee and the DWD Office of Legal Counsel.
See section B15. and Job Order Policy memo " Declining Job Orders vs. Discontinuation of Service" dated December 6, 2004.
Job order responsible staff and supervisors have discretion to decline job orders that do not meet applicable employment laws or comply with DET policy. Because Job Center of Wisconsin and other services of Job Service are paid for by public funds, Job Service reserves the right to refuse the listing of a job order that is contrary to community standards of good taste or decency, is misleading, or appears to be in violation of employment related laws (see B14 Unusual Job Orders). Staff and supervisors have local discretion to decline job orders until modified.
If a job order writer who is authorized to make the determination decides that a job order should be refused under the policy stated above, that staff person shall notify the Job Service Supervisor for the local office, who will notify the person who submitted the job order. The submitter may request a review of the determination. If the employer agrees to modify, amend or change the contents of the job order to comply with Job Order policy and employment related laws, the order writer can then process the order..
Local staff and supervisors can temporarily suspend job order services to a company if continuation of service could "cause substantial harm to a significant number of workers" (20 CFR 658.501(b)) or pending a decision by DET Management to discontinue service permanently. The employer must be notified in writing and provided an opportunity to appeal to DET Management.
Formal discontinuation of job order service must be based on specific evidence of wrong doing as outlined below. DET Management must make this decision. The following are some conditions identified as the basis for discontinuation of services to employers (20 CFR 658.501(a)):
A. Employer submits and refuses to alter or withdraw job orders containing specifications which are contrary to employment related laws.
B. Employer submits interstate or intrastate job workers seeking workers to perform agricultural or food processing work and refuses to provide assurances that the jobs offered are in compliance with employment related laws.
C. Employer is found, through field checks or otherwise, to have either misrepresented the terms and conditions of employment specified on job orders or to have failed to comply fully with assurances made on job orders.
D. Local Job Service staff or Job Service Complaint Specialists are informed or become aware that three or more formal written complaints have been filed against an employer who placed a job order within the past 12 months (Job Service Related Complaints). If complaints are resolved locally, the employer may continue to receive services. If complaints are not resolved, the employer is informed that job orders will be pulled out of the system with no more applicant referrals, until the complaints are resolved.
E. Job Service staff (either local or central office) become aware or are notified by an enforcement agency or agencies after an investigation, that complaints against that employer did violate employment-related laws.
Employers can be reinstated by providing evidence that the reasons for discontinuation of service have been eliminated (20 CFR 658.504).
See Job Order Policy memo " Declining a Job Order vs. Discontinuation of Service" dated December 6, 2004.
20 CFR 658.501, 502, 503, 504