United States: Layoffs: The Challenges Of The PERM Notify And Consider Requirement

Layoffs¹ affect the green card sponsorship process under the Program Electronic Review Management (or PERM) program. Before an employer can file a PERM application, the employer must make a good faith test of the labor market to ensure that no qualified U.S. workers² are available. This includes U.S. workers laid off by the employer within the six (6) months prior to filing the application³ in the area of intended employment⁴, and in the occupation involved in the PERM application or in a related occupation⁵. In addition, pursuant to 20 C.F.R. § 656.17(k)(1), an employer must properly document that "it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the PERM application and the results of the notification and consideration."⁶ Thus, employers must also make a good faith to inform laid-off employees about an available job opportunity and provide these employees with sufficient time to respond.

The Department of Labor (DOL) has "long held the view that good faith recruitment requires that an employer's process for considering U.S. workers who respond to certification-related recruitment closely resembles the employer's normal consideration process."⁷

A recent (April 2023) BALCA decision, Matter of Anthem Inc., elaborates on the "good faith" requirement.⁸ Specifically, BALCA found that notifying a laid-off worker, immediately prior to filing the application, is inadequate as a "good faith" effort. This further defines a "good faith" effort to mean that "an employer may not recruit in a manner that may discourage a potentially qualified applicant's pursuit of the job opportunity or otherwise restrict the pool of potential applicants."⁹

Yet, the PERM recruitment process presents its own challenges to employers, especially if they have to go beyond advertising and try to directly contact the employer's laid-off U.S. workers for a job opportunity that is the subject of the LCA. Thus, even though DOL has taken steps to define "good faith" effort, the "notify and consider" regulatory requirement has remained broadly defined. It became a central issue in the 2013 BALCA (Board of Alien Labor Certification Appeals) case, Matter of Microsoft Corporation¹⁰, which led to the Department of Labor to issue a Frequently Asked Questions (FAQ) on February 21, 2014.¹¹

The FAQ clarifies that informing laid-off workers that the employer may have future positions and invite the worker to monitor the employer's job postings and apply does not fulfill the notify and consider requirement.¹² Rather, the employer is obligated to make a reasonable, good-faith effort to notify each potentially qualified worker who has been laid off during the six months preceding the application whenever a relevant job opening exists and invite the worker to apply.

While there is no specified notification method in the regulations or guidance, an employer should select an option that she believes adheres to the good faith expectation and that will reach the laid-off worker in sufficient time to apply. Examples would include e-mail or sending a notice by certified mail to the worker's last known address. The notification must provide a full description of the job opportunity, invite the worker to apply for the opportunity, and have clear application instructions. The employers should obtain the latest contact information for laid-off U.S. workers and inform them of their responsibility to update contact information should it change.

Furthermore, the employer must maintain documentation showing that it has met its notice and consideration requirements, including written records of all relevant documents (letters, e-mails, faxes, Web pages, etc.) and log of attempts to reach the laid-off U.S. worker(s) with a uniform method that contains the date and confirmation of receipt. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.

Even though the FAQ provided employers with more guidance for complying with the "notify and consider" requirement; there were still many practical questions unanswered. Consequently, in the Matter of Anthem Inc., BALCA clarified that the employer must notify the laid-off worker about the job opportunity with sufficient time to allow the worker to apply, "and for the employer to seriously consider the worker for the position in a manner that is consistent with good faith recruitment."¹³ Notifying the laid-off worker 127 days after posting the first advertisement for the job opportunity and only one day before filing the application, the employer did not provide enough time for the worker to consider the position, thereby frustrating the purpose of the regulation. It is advised that employers proactively plan for appropriate notification timelines.

Finally, the employer must document the results and prepare the recruitment report accordingly. This should include the number of U.S. workers laid-off from the occupation or related occupations during in the period (including the names, titles, and work locations of affected workers); the number of laid-off U.S. workers notified of the opportunity; the number of laid off U.S. workers who were notified but who did not apply for any such positions; the number of laid-off U.S. workers who responded to the notice; and the specific and legal job-related reasons for disqualification. The employer should also keep evidence of delivery of notification to relevant laid-off workers, detailed records of which laid-off workers responded to the notice, resumes (and applications, if applicable) of laid-off workers who responded to the notice, and documentation concerning the reasons for disqualification.

In sum, an employer must properly and timely notify and consider U.S. laid off workers and maintain the pertinent evidence. In the upcoming year, we hope that with the proposed PERM modernization regulation, the DOL and BALCA will provide further clarity guidance on how employers can clearly meet the notify and consider requirements.

Footnotes

1. A layoff is "any involuntary separation of one or more employees without cause or prejudice." See 20 CFR § 656.17(k)(1): eCFR : 20 CFR 656.17 -- Basic labor certification process.

2. A U.S. worker is any employee who is a citizen or national of the United States, any U.S. lawful permanent resident, any alien admitted as a refugee under § 207 of the Immigration and Nationality Act (INA), any alien granted asylum under § 208 of the INA, or any immigrant otherwise authorized (by INA or by the Attorney General) to be employed in the United States.

3. 20 CFR 656.17(k)

4.The area of intended employment is defined as the area within the normal commuting distance of the place of intended employment or within the same metropolitan statistical area (MSA). 20 CFR 656.3: eCFR : 20 CFR 656.3 -- Definitions, for purposes of this part, of terms used in this part.

5. A related occupation is any occupation that requires an employee to perform a majority of the essential duties. 20 CFR 656.17(k)(2): eCFR : 20 CFR 656.17 -- Basic labor certification process.

6. Ibid.

7. U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification. "PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR 656.10(b)(2)." Undated memo. https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/PERMRule20CFR65610b2.pdf

8. Matter of Anthem Inc., 2020-PER-00115 (April 12, 2023). The BALCA ruling can be found at https://www.oalj.dol.gov/DECISIONS/ALJ/PER/2020/In_re_ANTHEM_INC_2020PER00115_(APR_12_2023)_160012_CADEC_PD.PDF?_ga=2.7724917.657059110.1698423275-795513945.1662501745

9. Ibid.

10. AILA Doc. No. 13111544, November 7, 2013.

11. "DOL FAQ on Notification and Consideration of Laid-Off U.S. Workers for PERM Applications." AILA InfoNet Doc. No. 14022460 (February 24, 2014): https://www.aila.org/infonet/dol-faq-consideration-of-laid-off-us-workers-perm

12. AILA InfoNet Doc. No. 14022460

13. Matter of Anthem Inc., 2020-PER-00115 (April 12, 2023).

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