Layoffs Under PERM: The U.S. Department of Labor's New Rules
Under pre-PERM law, the U.S. Department of Labor (DOL) had the discretionary authority
to request information of the employer concerning layoffs as part of its duty to
determine and certify that no U.S. workers were available for the job. In keeping
with its general burden shifting, PERM now places on the employer an affirmative
obligation to test the job market among its recently laid off U.S. workers by notifying
and considering those who either held the same job for which certification is sought,
or a job sufficiently similar to be deemed what DOL refers to as a related occupation.
Related Occupation
The regulations define a related occupation as, "any occupation that requires workers
to perform a majority of the essential duties involved in the occupation for which
certification is sought." For example, if a labor certification is sought for the
position of Senior Systems Engineer, and the employer has had recent layoffs in
other positions such as Systems Engineer or Software Engineer, the employer would
have to compare the duties of the two jobs to determine whether the majority of
the essential duties overlap, paying particular attention to the time spent on each
duty. This comparison is very similar to the Job A/Job B analysis for considering
experience gained with the employer for purposes of satisfying the employer's Minimum
Requirements.
Potentially Qualified
If any U.S. workers fitting into these two categories (the same or a related occupation)
were laid off within six months prior to the date that the labor-certification Application
is filed, DOL requires that the employer notify and consider only those who are
Potentially Qualified. Unfortunately, this important qualifier is not further explained
in the regulations, but it is almost certain that any U.S. workers who formerly
performed the same job or a majority of the same duties would be considered at least
Potentially Qualified.
Notification
The regulations do not provide any guidance on how the employer should notify the
Potentially Qualified laid-off U.S. workers. The notification requirement has no
antecedents under pre-PERM law. Without any Appellate decisions or policy memoranda
to elucidate it, the employer and its representative are left to determine which
means of notification, e.g., posting on the State labor department job board or
sending a letter directly to each laid-off worker, will withstand the potential
scrutiny of a DOL audit. Because the burden is on the employer to demonstrate PERM
compliance in case of an audit, the better approach is to notify directly each laid-off
U.S. worker in writing whenever feasible.
Consideration
The regulations require the employer to document that it has both notified and considered
the U.S. worker. While the regulations appear to fall short of requiring that the
employer hire any Potentially Qualified laid-off U.S. worker who previously held
the job or a Related Occupation, DOL has commented that, "employers must document
that they offered the position to those laid-off workers who are able, willing,
and qualified for the job opportunity, and the result of their consideration of
such workers." Thus, the employer should be prepared to strongly defend its decision
not to extend any Potentially Qualified laid-off U.S. worker an offer of reemployment.
At a minimum, the employer should be able to demonstrate that the laid-off U.S.
worker was either no longer available or could not perform the main job duties,
even with a nominal period of training, or that past performance appraisals clearly
disqualified the worker. Consistent with its historic obligation to determine that
there are no qualified U.S. workers available for the job for which certification
is sought, DOL should be expected to overwhelmingly favor the employer rehiring
a laid-off U.S worker rather than employing a foreign national, even when the previous
job performance of the laid-off worker was less than optimal.
Meaning of Layoff
The PERM regulations define a layoff as, "any involuntary separation of one or more
employee without cause or prejudice." Thus, even a single layoff is sufficient to
trigger the employer's duty of notifying and considering the laid-off of a U.S.
worker. However, DOL does not consider a U.S. worker who was separated for cause,
such as not meeting performance goals or violating company policy, as being laid
off. Contract staff who are laid off are also specifically excluded. The closer
questions involve separations which fall somewhere between a firing and a layoff,
such as a forced resignation accompanied by a financial settlement. These cases
must be necessarily analyzed on a case by case basis.
Location of Layoffs
The PERM rules specifically apply to layoffs that have occurred "in the area of
intended employment." The area of intended employment means, "the area within normal
commuting distance of the place (address) of intended employment." DOL does not
attempt to define what constitutes a "normal commuting distance," suggesting that
the term is variable. Generally, however, if the employer has two work locations
within a single metropolitan area, the employer must consider layoffs at both locations.
Conversely, an employer with multiple locations outside of normal commuting distance
from another need not survey its entire workforce.
Only the Employer's Layoffs
The employer need only consider U.S. workers laid off by it, not by other employers
in the industry, even those operating within the same geographical area. This being
so, the employer should thoroughly assess its recent layoffs. DOL has advised that
its program experience has shown that Companies "are able to determine whether an
employer had laid off workers by relying on various sources of information such
as Worker Adjustment and Retraining Notification (WARN) notices, newspaper articles,
and internet search tools."
Timing of Layoffs
The regulations impose upon the employer the duty to notify and consider only those
U.S. workers whose layoffs occurred within six months of filing an application.
While this language can be read to impose the duty with respect to layoffs either
six months before or six months after the filing date, ETA-9089 only asks whether
there has been any layoffs within six months immediately preceding the filing of
this application. This language and supplementary information contained in the Federal
Register support the view that the employer is under no continuing obligation to
notify and consider U.S. workers who worked in the same or a related occupation
and were laid off subsequent to the filing of the application. Consistent with pre-PERM
law, it appears to the be within the Company's discretion whether to investigate
and review post-filings layoffs.
Likely Audit Trigger
Employers whose PERM cases invoke the layoff provisions should include documentation
of their notification and consideration of affected laid-off U.S. workers in the
PERM audit file and prepare the kinds of supporting evidence outlined above. Given
the way PERM is designed, a positive answer on ET9089 indicating that an employer
has had recent layoffs in the same or a related occupation should be considered
a likely audit trigger. Because of this, a risk-adverse employer may wish to wait
until six months after a layoff before filing a Labor Certification Application
under PERM.
|