Job Posting Policies and Procedures

Section B

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B1. US National Labor Exchange

All job postings are automatically posted on US National Labor Exchange (usnlx.com), after the job posting has passed the Veteran's Priority hold. Suppressed postings will not be posted.

B2. Job Posting Complaints

When a complaint, question, or concern is raised about a job posting, the staff person receiving the complaint should always try to address the concern in a professional, 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.

B3. Discrimination

Job postings 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.

When a question arises about the appropriateness or legality of a job posting, an individual or staff person may contact the Job Center of Wisconsin mailbox for further investigation.

B4. Fees, Investments, and Purchase as a Condition of Employment

Job postings 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 posting.

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 where workers 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.

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 posting will clearly state any requirement for pre-employment medical testing.

Any requirements for purchases or use of personal property should be clearly stated on the job posting.

References:

29 U.S. Code § 3254 (5)

B5. Foreign Labor Certification

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 Posting ETA Form 790 to the State Workforce Agency (SWA) at least 60 days before, but not more than 75 days prior to, the employer's date of need.

The foreign labor certification (FLC) process is the responsibility of the employer, not the employee or Job Center staff.

Permanent Foreign Labor Certification job postings should be indistinguishable from any other job posting.

Job postings 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 representatives entering job postings online should register to use Job Center of Wisconsin under the workplace company name.

Temporary FLC job postings are entered, serviced, and closed by the state Foreign Labor Certification Coordinator in the DWD Central Office.The employer names in these postings are suppressed to ensure that all resumes are sent through the central office for review and not directly to the employer. Temporary FLC job postings will be recognizable because the FLC office in Madison will be listed as the employer and the point of application. Temporary FLC job postings are not to be updated, closed or otherwise modified by local field staff.

Office of Foreign Labor Certification (US Dept. of Labor)

B6. Independent Contractor Opportunities

The purpose of the public labor exchange is to facilitate employment. Job postings 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 postings.

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.

References: 20 CFR 651.10, 20, 30 and 50

USC 29 Section 49

B7. Labor Disputes

Job postings will not be accepted for positions that are vacant due to a labor dispute, strike or lockout.

When a job posting 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 posting can be accepted. If it is involved, the job posting cannot be accepted.

Reference: Code of Federal Regulations, 20CFR 652.9 Federal Regulations Labor Dispute

B8. On-site Recruitment

An employer who does on-site recruitment at a Job Center must have a job posting listed on Job Center of Wisconsin at the time of the recruitment.

B9. 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 which 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.

Registered Apprenticeship opportunities are an exception as explained in this policy document (see A3).

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.

B10. Unusual Job Postings

The Job Service Bureau reserves the right to refuse or discontinue the listing of a job posting that is contrary to community standards of good taste or decency, is misleading, or appears to involve conduct that violates state or federal law.

If staff believe that a job posting should be refused or discontinued under the policy stated above, staff shall notify the Job Center of Wisconsin mailbox. Designated staff will contact the person who submitted the job posting. 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.

B11. Declining Job Postings and Discontinuation of Service

Staff and supervisors have discretion to decline job postings 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 posting that is contrary to community standards of good taste or decency, is misleading, or appears to be in violation of employment related laws (see B10 Unusual Job Postings). Staff and supervisors have local discretion to decline job postings until modified.

If staff believe that a job posting should be refused under the policy stated above, that staff person shall notify the Job Center of Wisconsin mailbox. Designated staff will contact the person who submitted the job posting. If the employer agrees to modify, amend or change the contents of the job posting to comply with Job Posting policy and employment related laws, the job posting is allowable.

Local staff and supervisors can temporarily suspend job posting 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 posting 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)):

Employer submits and refuses to alter or withdraw job postings containing specifications which are contrary to employment-related laws.
Employer submits interstate or intrastate job postings 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.
Employer is found, through field checks or otherwise, to have either misrepresented the terms and conditions of employment specified on job postings or to have failed to comply fully with assurances made on job postings.
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 posting within the past 12 months (Job Service Related Complaints). If complaints are resolved, the employer may continue to receive services. If complaints are not resolved, the employer is informed that job postings will be removed from the system with no more applicant referrals, until the complaints are resolved.
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).

References:

20 CFR 658.501, 502, 503, 504