In most employment based green card cases, the required recruitment focuses only on who applies and whether they were qualified for the offered position, per the stated minimum qualifications. Where the employer has laid off one or more workers in the area of intended employment in the 6 months immediately prior to filing the PERM case, or where there have been significant layoffs in the industry in that area during that time, a new set of obligations and issues arise.
Where the employer has laid off employees in the area of employment in that six month period, the employer must disclose that to DOL in the PERM filing, if certain conditions are met. The following comments address what can happen in this situation, and recommends what the employer should do to reduce the chances of an audit and increase the chances of case approval.
WHAT IS A LAYOFF? A layoff is any involuntary separation of one or more workers without cause. (A furlough is not the same – in that case the employee is still on the payroll and is not separated from the company, even though it may be involuntary.) A furlough is defined as a leave of absence, so by definition it is not the same as a layoff.
WHEN IS THE TIMING OF A LAYOFF SIGNIFICANT? Only if it occurs within the six month period immediately before the PERM is electronically submitted to DOL. NOTE: the DOL guidance uses the term “6 months” and not 180 days. Regardless, the PERM should be filed only after 6 months and, e.g., a week has expired since the relevant layoff(s).
WHAT CAN DOL DO IF THERE HAS BEEN A LAYOFF IN THAT TIME FRAME? It can require the employer to conduct supervised recruitment. If that happens, the recruitment starts all over, so the employer will incur significant additional expense, and the case will be delayed by what could be several months or even more.
DOES DOL HAVE TO REVIEW THE ACTUAL RECURITMENT THAT THE EMPLOYER CONDUCTED FIRST? NO, it can order supervised recruitment without doing so.
IS THAT THE ONLY TIME DOL CAN REQUIRE SUPERVISED RECRUITMENT? No, if DOL sees that there have been industry wide layoffs in that six month period, it can require supervised recruitment. In the present climate, where there have been massive layoffs in all sectors of the US economy, DOL is likely to be very alert to industry layoffs even where the individual employer has not laid off anyone.
For that reason, it is worth considering a delay in recruitment if the sponsored employee has significant time left in his or her nonimmigrant visa status.
WHAT DOES DOL COMPARE WHEN REVIEWING LAYOFFS WITHIN THE SIX MONTH PERIOD? Several points:
- Only certain workers are covered by this rule. The only workers protected by this rule are workers who:
- Held the same or related job at the time of layoff (see #2).
- Are US Citizens, Legal Permanent Residents, Asylees and Refugees.
- The employer was obligated to notify (see below).
- Did the laid off worker hold a job at the time of the layoff in the same or related occupation? DOL defines a related occupation as one which requires the worker to perform a majority of the essential duties of the position on which the PERM case is based.
- Did the laid off employee work in the same area of intended employment? DOL issued a FAQ in February of 2014 that addressed all of the issues listed in this memo, except this one. It did not define this term. However, the employer at the very least must consider all laid off employees who held the same/related job at the same workplace, and probably within the same SMSA.
IF DOL DOES NOT REQUIRE SUPERVISED RECRUITMENT, WHAT MUST THE EMPLOYER DEMONSTRATE IF A WORKER IN THE SAME/RELATED JOB WAS LAID OFF WITHIN THE SIX MONTHS BEFORE THE EMPLOYER FILED THE PERM?
Several things must be demonstrated with clear and cogent documentation:
1. When it lays off the worker,
a. it must give him written notice that it will notify him of any relevant openings for which he may be qualified, unless he elects not to receive such notice.
b. That notice should confirm to the employee that he must apply for any open positions for which he believes he is qualified.
c. If he declines the notice, the employer must obtain that in writing, signed by the employee.
d. It must obtain all of his contact information (unless the employee declines to give it), and advise the employee of his duty to keep the employer advised of all changes in contact information.
e. If the employee declines to give contact information or declines to keep the employer updated on changes, the employer must obtain that in writing, signed by the employee.
2. If the employee gives all pertinent contact information and expresses an interest in receiving notice:
a. The employer should give the employee notice as it said it would.
b. If the employee fails to apply, the employer can consider him to have disqualified himself/be unqualified for the job.
c. If he does apply, the employer should determine if, on the face of the employee’s resume, he or she clearly is not qualified.
d. If the employer cannot determine that he is not minimally qualified, the employer should document that, just as it would do for any other applicant in the case, had there been no layoff.
e. If the employee reasonably appears to be qualified, the employer must notify that worker of the open position and give him proper consideration through an interview.
3. When it conducts the recruitment in the case, it must show that it notified all such apparently qualified laid off workers of the open position.
a. It should use all contact information to notify the worker(s).
b. Use certified mail and make a copy of the letter and the certified mail documentation.
c. For workers who asked to be advised by email, in the body of the email,
i. Include the company website and advise the employee to check it regularly for jobs for which he feels he is qualified, and to apply if he does.
ii. it would be prudent (but not required) to embed in the body of the email a list of open positions and their hyperlinks.
iii. Once the email has been sent, print out a copy showing it was sent, used the “Read Receipt” function, and print out a copy of the response showing it was received.
d. For phone calls, the caller should prepare a memo after the call, to confirm if the employee answered, and if so, the exact conversation (use a script so that the same basic comment is made to each employee).
e. For website and other general methods of notice, the employer should make copies of those as well.
f. For Intranet, use that method only if the laid off employee(s) will have access to it after the layoff takes place.
g. Length of time for website notice: the conservative approach is to keep the notice on the site for the entire recruitment period.
WHERE SUCH WORKERS ARE LAID OFF INSIDE THE SIX MONTH TIME FRAME, ARE THERE ANY OTHER SIGNIFICANT DIFFERENCES IN HOW THE PERM IS ANSWERED?
Yes. The questions at Section I, numbers 26 and 26A on the PERM form will reflect different answers than in cases where there has not been a layoff with the employer in the six months before the PERM is filed. Depending on the nature of the layoff and whether any qualified workers were laid off during the six month period, Chapman Law Firm will work with the employer to give proper answers to those questions and to provide any necessary explanation of the employer’s particular circumstances.
Every client situation is different, and the above comments are not intended to serve as specific advice to clients with different circumstances. In addition, DOL continues to issue guidance that could change or make some of the following comments inapplicable. Because the current situation is so fluid, employers facing some or all of the issues set out above should make their decisions only after consulting with immigration counsel, and in some instances, with labor or other counsel, too.